Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto), the Company does not have, is not a party to and is 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company, (v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, (vi) any lease of personal property having a value individually in excess of $25,000, (vii) any agreement of indemnification or guaranty, (viii) 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, (ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000, (x) 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, (xi) 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, (xii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days. (b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Stock Exchange Agreement (Jenkon International Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 2.15(a) or as specifically set forth in of the Disclosure Schedule (specifying the appropriate subsection of this Section 2.15(a)), neither the Company Financials (including the notes thereto), the nor any Company does not have, Subsidiary is not a party to and is not or bound by, nor does the Company nor any Company Subsidiary have any continuing obligations under:
(i) any collective bargaining agreements,Contract 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm plan or other organization provides services to the Company,
(v) any agreement or planContract, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Transactions or any Related Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Transactions;
(viiii) any collective bargaining, union or works council agreement or any other Contract (each a “Labor Contract”) with a union, trade union, works counsel, or any other labor-relations entity (each a “Labor Entity”);
(iv) 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 personal property having a value individually requiring annual payments in excess of $25,000,;
(vi) any Contract that imposes surety, guaranty or indemnification obligations on the Company or any Company Subsidiary;
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,75,000 individually or $200,000 in the aggregate;
(xviii) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of business consistent with past practice;
(ix) any Contract under which the Company's business,’s or 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;
(xix) 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,;
(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, referral, advertising, agency, dealer, distributor, joint marketing, joint venture, partnership or strategic alliance Contract;
(xiii) any Contract, including any Contract to exclusively negotiate with, or grant right or right of first refusal or first offer to, any Person (other agreementthan Parent) related to the acquisition of the Company or any Company Subsidiary;
(xiv) any Contract pursuant to which the Company or any Company Subsidiary has undertaken to, contract or commitment 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 Contract 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, payment of fees is contingent upon or an agreement may be terminated in the event a specified return on investment or similar success measure for use of the products or service offerings offered by the Company 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 Person, in any line of business, market or 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 $25,000 75,000 individually or $200,000 in the aggregate or more or and is not cancelable 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) True, correct and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.15 (each, together with any Contract scheduled, or required to be scheduled, in connection with the representations set forth in Sections 2.12, 2.13, 2.14, 2.16, 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 or 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 required nor, to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreementthe Knowledge of the Company, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company or any Company Subsidiary pursuant thereto. Following to any such Contract subject to any material breach, violation or default thereunder, nor, to the Closing Date, the Company will be permitted to exercise all Knowledge of the Company's rights under , has any event occurred that with the Contracts without the payment lapse of any additional amounts time, giving of notice or consideration other than ongoing feesboth would constitute such a material breach, royalties violation or payments which default by the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredor such Company Subsidiary or any such other party.
Appears in 1 contract
Sources: Merger Agreement (Bioventus Inc.)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in As of the date hereof, neither the Company Financials (including the notes thereto), the Company does not have, nor any of its Subsidiaries is not a party to and is not to, nor are they bound by:
(i) any collective bargaining agreements,Employee Agreement in effect as of the date of this Agreement, other than (A) Company Options and other than standard offer letters that do not contain terms regarding severance, change in control or similar payments or (B) agreements between the Company or any of its ERISA Affiliates and any consultant or contractor relating to the performance of services for the Company or any of its ERISA Affiliates (in either case, the forms of which have previously been provided to Parent);
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, plan (including any stock option planCompany Option Plans, stock appreciation rights plan or stock purchase plan, ) any of the benefits of which will 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 (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 by this Agreement,;
(viiii) any lease of personal property having a value individually providing for payments in excess of $25,000,25,000 individually or $100,000 in the aggregate;
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ixiv) any agreement, contract or commitment relating to capital expenditures and involving future payments after the date hereof in excess of $25,000,25,000 individually or $100,000 in the aggregate;
(xv) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xivi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or money, extension of creditcredit or security interest;
(vii) any pending purchase order or contract for the purchase of materials involving in excess of $100,000;
(viii) any powers of attorney, including guaranties,other than powers of attorney executed in connection with customs transactions;
(ix) any agreement containing any price protection, “most favored nation” or similar provisions;
(x) any partnership, joint venture, strategic alliance or similar agreement;
(xi) any material Contract to which an Interested Party is a party, other than Contracts relating to the acquisition of equity securities of the Company or relating to an Interested Party’s employment or service relationship with the Company;
(xii) any other dealer, distribution, joint marketing, development agreement, contract sales representative, original equipment manufacturer, value added, remarketer, reseller, or commitment independent software vendor, or other agreement for marketing, sales, provision or distribution of the Company’s products, technology or services and that is material to the Company’s business; or
(xiii) any other Contract, including any service, operating or management agreement or arrangement with respect to any of the Company’s properties (whether leased or owned), that involves in excess of $25,000 or more or 100,000 and is not cancelable without penalty within thirty (30) days.
(b) The Company has and its Subsidiaries are in compliance in all material respects with, and have not received notice prior to the date of this Agreement that they have breached, violated or defaulted underunder any of, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment Contract required to be set forth on SCHEDULE 2.13(aSection 3.14(a) of the Company Disclosure Schedule, nor has there occurred any event or SCHEDULE 2.12(b) (any condition that could reasonably be expected to constitute such agreementa breach, contract violation or commitmentdefault by the Company or its Subsidiaries with the lapse of time, a "CONTRACT")giving of notice or both. Each Contract required to be set forth on Section 3.14(a) of the Company Disclosure Schedule is in full force and effect and is not subject (except to any material default thereunderthe extent that such Contracts are terminated in a manner permitted under Section 5.1(b)(iii)) and, of which to the Company has knowledgeCompany’s Knowledge, by any no third party obligated to the Company or any of its Subsidiaries pursuant thereto. Following the Closing Dateto any such Contract is subject to any default thereunder.
(c) The Company has delivered to Parent true, correct and complete copies of all Contracts listed in Section 3.14(a) of the Company will be permitted to exercise Disclosure Schedule, including all of the Company's rights under the Contracts without the payment of any additional amounts or consideration other than ongoing feesamendments, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredsupplements, exhibits and ancillary agreements thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes theretoSchedule 2.12(a), the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00010,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) 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,
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,0005,000,
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract for the purchase of raw materials involving $5,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvii) any other agreement, contract or commitment that involves $25,000 5,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(aSchedule 2.12(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.Schedule 2.11
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 2.16(a) or as specifically set forth in of the Disclosure Schedule (specifying the appropriate paragraph):
(a) Neither Company Financials (including the notes thereto), the Company does not have, nor any of its Subsidiaries is not a party to and to, or is not it bound by:
(i) any collective bargaining agreements,written or binding oral (1) employment, contractor or consulting agreement, (2) contract or commitment with an Employee or individual consultant or contractor, or (3) any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any Employee;
(ii) any agreements written or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any binding oral agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or in connection with additional or subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any collective bargaining, union or works council agreements;
(v) any lease of personal property having a value individually in excess of $25,000,50,000 individually or $175,000 in the aggregate;
(vi) any written or binding oral agreement that imposes surety, guaranty or indemnification obligations on the Company or any of its Subsidiaries (other than indemnities contained in non-exclusive licenses of Company products and services to end-users that have been entered into in the ordinary course of business consistent with past practice materially consistent with the Company’s standard forms included in Section 2.15(w)-2 of the Disclosure Schedule);
(vii) any agreement of indemnification written or guaranty,
(viii) any binding oral 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,
(ix) any agreementContract, contract lease or commitment relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or $175,000 in the aggregate;
(xviii) any written or binding oral agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(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,;
(x) any purchase order or contract for the purchase of materials involving in excess of $50,000 individually or $175,000 in the aggregate;
(xi) any construction contracts related to real property;
(xii) any other joint marketing, joint venture, partnership, strategic alliance, affiliate or development agreement;
(xiii) any written or binding oral 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;
(xiv) any written or binding oral 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 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 written or binding oral agreement, contract, arrangement or understanding between the Company or any of its Subsidiaries and a customer or partner of the Company or any of its Subsidiaries pursuant to which paid fees must be refunded, payment of fees is contingent upon or an agreement may be terminated in the event the hosted software products offered by the Company or any of its Subsidiaries do not pass acceptance testing by such customer or partner;
(xvi) any written or binding oral agreement, contract, arrangement or understanding between the Company or any of its Subsidiaries and a customer or partner of the Company or any of its Subsidiaries pursuant to which paid fees must be refunded, payment of fees is contingent upon or an agreement may be terminated in the event a specified return on investment or similar success measure for use of the products or service offerings offered by the Company or any of its Subsidiaries is not achieved;
(xvii) any written or binding oral agreement, contract, arrangement or understanding between the Company or any of its Subsidiaries and a customer or partner of the Company or any of its Subsidiaries which includes a most favored customer or similar clause;
(xviii) any written or binding oral agreement, contract, arrangement or understanding between the Company or any of its Subsidiaries and a customer or partner of the Company or any of its Subsidiaries for which application revenue, under GAAP, may not be recognized on a prorata basis over the term of the agreement or for which any application revenue must be deferred or put on hold pending a future event;
(xix) any dealer, distribution, 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
(xx) any other written or binding oral agreement, Contract, lease or commitment, including, without limitation, or any service, operating or management agreement or arrangement with respect to any of the Leased Real Property, that involves $25,000 50,000 individually or $175,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) Each customer Contract or other 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 binding agreement of the Company or any of its Subsidiaries enforceable against each of the Company and its Subsidiaries which are parties thereto in accordance with its terms, and is in full force and effect with respect to the Company or any of its Subsidiaries and, to the Knowledge of the Company, any other party thereto. The Company is in compliance with, and has not breached, violated or defaulted under, or received notice or has any reason to believe that a customer may assert that it has breached, violated or defaulted under, any of the terms or conditions of any agreementsuch customer Contract or other material Contract, contract or commitment required nor to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material 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 or any of its Subsidiaries or any such other party. Following True and complete copies of each Contract disclosed in the Closing DateDisclosure Schedule or required to be disclosed pursuant to this Section 2.16(a) (each a “Material Contract” and collectively, the Company will be permitted “Material Contracts”) have been made available to exercise all Parent.
(c) All outstanding indebtedness of the Company's rights under the Contracts Company or any of its Subsidiaries may be prepaid without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredpenalty.
Appears in 1 contract
Sources: Merger Agreement (Taleo Corp)
Agreements, Contracts and Commitments. (aA) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth disclosed in the Company Financials (including the notes thereto)Schedule 2.12, the Company Vista Vacations does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services organization, not terminable by Vista Vacations on thirty days notice without liability, except to the Company,extent general principles of wrongful termination law may limit Vista Vacations' ability to terminate employees at will;
(v5) any Any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi6) any Any fidelity or surety bond or completion bond;
(7) Any lease of personal property having a value individually in excess of $25,000,2,000;
(vii) any 8) Any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business;
(viii9) any Any agreement, contract or commitment containing any covenant limiting the freedom of the Company Vista Vacations to engage in any line of business or to compete with any person,;
(ix10) any Any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,2,000 in any single instance or $10,000 in the aggregate;
(x11) any Any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xi12) any Any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties,guaranties referred to in Schedule 2.12(A)(12) hereof;
(xii13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any single instance or $10,000 or more in the aggregate;
(14) Any construction contracts;
(15) Any distribution, joint marketing or development agreement;
(16) Any other agreement, contract or commitment that which involves $25,000 1,000 or more in any single instance or more than $10,000 in the aggregate and is not cancelable without penalty within thirty (30) daysdays other than standard end-user licenses of Vista Vacations' products and services in the ordinary course of business consistent with past practice, or
(17) Any agreement which is otherwise material to Vista Vacations' business.
(bB) The Company (1) Vista Vacations has not breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be which it is bound (including those set forth on SCHEDULE 2.13(ain any of Vista Vacations Schedules) in such manner as would permit any other party to cancel or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which terminate the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredsame.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 2.14(a) of the Disclosure Schedule (specifying the appropriate paragraph, provided, that the failure to properly identify the correct paragraph or as specifically set forth in each paragraph that may be applicable, alone, shall not affect the Company Financials (including the notes theretoaccuracy or correctness of this representation or warranty), the Company does not have, is not a party to and to, nor is not 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 (excluding "at will" employee relationships) 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 under which any with a firm or other organization provides services to the Company,organization;
(vii) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually requiring future payments in excess of $25,000,5,000 annually or $50,000 in the aggregate;
(viiv) any Lease Agreements;
(vi) any agreement of indemnification or guaranty,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;
(viiivii) 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,
(ix) any agreement, contract or commitment Contract relating to capital expenditures and involving requiring future payments in excess of $25,000,25,000 in the aggregate;
(xviii) 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,enterprise;
(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,;
(x) any purchase order or contract for the purchase of materials involving payments in excess of $15,000 individually or $50,000 in the aggregate;
(xi) any construction contracts;
(xii) any hedging, swap, derivative, International Swaps and Derivatives Association or similar Contract;
(xiii) any dealer, distribution, joint marketing, 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
(xix) any other agreement, contract or commitment that involves $25,000 15,000 individually or $50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) days.
(b) 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 the avoidance of doubt, each Contract entered into on a Standard Form Agreement), 2.13(j), 2.13(o), Section 2.14 and the 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 is in full force and effect with respect to the Company and, 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 affecting creditors’ rights generally, and (ii) general principles of equity. Except as set forth in Section 2.14(c) of the Disclosure Schedule, the Company is in compliance in all material respects with and has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreementMaterial Contract, contract or commitment required nor to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, the Knowledge of which the Company has knowledge, by is any party obligated to the Company pursuant thereto. Following the Closing Dateto any Material Contract subject to any material breach, violation or default thereunder, nor does the Company will be permitted to exercise all 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 Company's rights under the Contracts without the payment of any additional amounts or consideration date hereof, other than ongoing feesin connection herewith, royalties or payments which the Company there are no new Contracts being actively negotiated that would otherwise be required to pay had be listed in Section 2.14(a).
(d) The Company has fulfilled all material obligations required to have been performed by the transactions contemplated by this Agreement not occurredCompany pursuant to each Material Contract.
(e) Except as set forth in Section 2.14(e) of the Disclosure Schedule, all outstanding Indebtedness of the Company may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth shown on SCHEDULE 2.13(a) Schedule 3.11 or as specifically set forth in the Company Financials (including the notes thereto)any other Schedule delivered by CPI hereunder, the Company does not have, CPI is not a party to or liable in connection with and is has not bound bymade 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,contracts, agreements or other arrangements imposing a non-competition, non-solicitation or similar obligation on CPI; and
(iij) any agreements other material agreement whether or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any lease of personal property having a value individually not in excess of $25,000,
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(x) 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,
(xi) . No third party has given notice to CPI of any mortgagesclaim, indentures, loans dispute or credit agreements, security agreements or other agreements or instruments relating controversy with respect to the borrowing of money or extension of credit, including guaranties,
(xii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms 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 required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT")of its obligations thereunder. Each Contract is in full force CPI enjoys peaceful and effect and is not subject to any material default thereunder, of undisturbed possession under all leases under which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredit operates.
Appears in 1 contract
Sources: Asset Purchase Agreement (Applied Science & Technology Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain or excepted from (by virtue of the specific exclusions contained in Sections 2.12(g) or 2.12(h) of the Disclosure Schedule) Sections 2.12(g) and 2.12(h) of the Disclosure Schedule, or as specifically set forth in Section 2.13(a) of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually in excess of $25,000,10,000 individually or $50,000 in the aggregate;
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ixv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,10,000 individually or $50,000 in the aggregate;
(xvi) 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,;
(xivii) 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;
(viii) any purchase order or contract for the purchase of materials involving in excess of $10,000 individually or $50,000 in the aggregate;
(ix) any construction contracts;
(x) any dealer, including guaranties,distribution, joint 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
(xii) any other agreement, contract or commitment that involves $25,000 10,000 individually or $50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes theretoSchedule 2.12(a), the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viiviii) any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(x) 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,
(xi) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xii) any executory purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiii) any construction contracts,
(xiv) any distribution, joint marketing or development agreement,
(xv) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvi) any other agreement, contract or commitment that involves requires future payments by the Company of $25,000 or more or and is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Company Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(aCompany Schedule 2.12(a) or SCHEDULE 2.12(bCompany 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 Company Schedule 2.12(b), is not subject to any material default thereunder, thereunder of which the Company has knowledge, knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Netscape Communications Corp)
Agreements, Contracts and Commitments. (a) Except as required by applicable law, contemplated by this Agreement, or as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto)Schedule 2.13, the Company does not have, is not a party to to, and is 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 (excluding "at will" employee relationships) agreement with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other organization provides services to the Company,Company not terminable by the Company on thirty days notice without liability;
(vf) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vig) any fidelity or surety bond or completion bond;
(h) any agreement or group of related agreements for the lease of personal property having a value individually in excess of $25,000,35,000 to or from any entity;
(viii) any agreement of indemnification or guaranty,;
(viiij) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,person or entity;
(ixk) any agreement, contract or commitment agreement relating to the purchase of materials or capital expenditures and involving future payments not incurred in excess the ordinary and usual course of $25,000,business, consistent with past practice;
(x) 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,
(xil) 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,credit to the Company;
(xiim) any agreement concerning confidentiality;
(n) any construction contracts;
(o) any distribution, joint marketing or development agreement;
(p) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other agreementright to use or acquire source-code; or
(q) to the extent not reported on the Company Balance Sheet, contract or commitment any other agreement that involves $25,000 payment by the Company not incurred in the ordinary and usual course of business, consistent with past practice or more or which is not cancelable cancellable without penalty within thirty (30) days.
(b) . 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 be set forth on SCHEDULE 2.13(a) Schedule 2.12(c), Schedule 2.12(d), Schedule 2.12(e), Schedule 2.12(f), or SCHEDULE 2.12(b) Schedule 2.13 (any such agreement, contract or commitment, a "CONTRACTContract"). Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.13, is not subject to any material default thereunder, thereunder of which the Company has knowledge, knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Adept Technology Inc)
Agreements, Contracts and Commitments. (a) Except Section 3.13 of the Clywedog Disclosure Schedule identifies each Clywedog Contract that is in effect as set forth on SCHEDULE 2.13(a) or as specifically set forth in of the Company Financials (including the notes thereto), the Company does not have, is not a party to date of this Agreement and is not bound byis:
(i) each Clywedog Contract relating to any collective bargaining agreements,agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(ii) each Clywedog Contract where any agreements of Clywedog’s assets and properties is currently bound, which, pursuant to the express terms thereof, require annual obligations of payment by, or arrangements that contain any severance pay or post-employment liabilities or obligationsannual payments to, Clywedog in excess of $250,000,
(iii) any bonus, deferred compensation, pension, profit sharing each Clywedog Contract relating to the disposition or retirement plans, acquisition of material assets or any other employee benefit plans or arrangements,ownership interest in any Entity;
(iv) each Clywedog Contract (A) requiring payments by Clywedog in excess of $250,000 pursuant to its express terms relating to the employment of, or the performance of services by, any employment Person, including any employee, consultant or individual independent contractor, providing employment-related, consulting agreementor independent contractor services or (B) that is not terminable by Clywedog or its Subsidiaries on thirty (30) calendar days’ or less notice without liability, contract except to the extent general principles of wrongful termination Law may limit Clywedog’s, its Subsidiaries or commitment (excluding "such successor’s ability to terminate employees at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,;
(v) each Clywedog Contract relating to any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will 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 Contemplated Transactions (either alone or in conjunction with any other event, such as termination of service), or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Contemplated Transactions;
(vi) any lease of personal property having a value individually in excess of $25,000,each Clywedog Real Estate Lease;
(vii) any agreement each Clywedog Contract disclosed in or required to be disclosed in Section 3.12(b) or Section 3.12(c) of indemnification or guaranty,the Clywedog Disclosure Schedule;
(viii) any agreement, contract or commitment each Clywedog Contract containing (A) any covenant limiting the freedom of Clywedog, its Affiliates or the Company Surviving Corporation to engage in any line of business or to compete with any person,Person, or limiting the development, manufacture or distribution of Clywedog’s products or services, (B) any most-favored pricing arrangement, (C) any exclusivity provision, (D) any non-solicitation provision, or (E) any grant of any option to any Intellectual Property;
(ix) each Clywedog Contract with any agreementPerson, contract including any financial advisor, broker, finder, investment banker or commitment relating other Person, providing advisory services to capital expenditures and involving future payments Clywedog or its Affiliates in excess of $25,000,connection with the Contemplated Transactions;
(x) any agreement, contract or commitment each Clywedog Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xi) any mortgages, indentures, loans loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties,credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of Clywedog or any of its Subsidiaries or any loans or debt obligations with officers or directors of Clywedog;
(xi) each Clywedog Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $250,000 pursuant to its express terms and not cancelable without penalty;
(xii) each Clywedog Contract requiring payment by or to Clywedog after the date of this Agreement in excess of $250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Clywedog, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Clywedog has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Clywedog has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Clywedog or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of Clywedog or any Contract to sell, distribute or commercialize any products or service of Clywedog, in each case, except for Clywedog Contracts entered into in the Ordinary Course of Business;
(xiii) each Clywedog Contract under which a third party would be entitled to receive a license or have any other rights in Intellectual Property of Clywedog, Beacon or any of their Affiliates at the time of or immediately after the Merger Effective Time;
(xiv) a Labor Agreement;
(xv) each Clywedog Contract providing for severance, termination compensation, retention or stay pay, change in control payments, or transaction-based bonuses; or
(xvi) any other Clywedog Contract that is not terminable at will (with no penalty or payment) by Clywedog, and (A) which involves payment or receipt by Clywedog after the date of this Agreement under any such agreement, contract or commitment of more than $250,000 in the aggregate, or obligations after the date of this Agreement in excess of $250,000 in the aggregate or (B) that involves $25,000 is material to the business or more or is not cancelable without penalty within thirty (30) daysoperations of Clywedog taken as a whole.
(b) The Company Clywedog has delivered or made available to the Beacon accurate and complete copies of all Clywedog Contracts described in clauses (i)-(xvi) of the immediately preceding sentence (any such Clywedog Contract, a “Clywedog Material Contract”), including all amendments thereto. There are no Clywedog Material Contracts that are not in written form. Neither Clywedog nor any if Subsidiaries has, nor to the Knowledge of Clywedog as of the date of this Agreement, has any other party to a Clywedog Material Contract, 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 Clywedog Material Contract in such manner as would permit any other party to cancel or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (terminate any such agreementClywedog Material Contract, contract or commitmentwould permit any other party to seek damages which would reasonably be expected to have a Clywedog Material Adverse Effect. As to Clywedog and its Subsidiaries, a "CONTRACT"). Each as of the date of this Agreement, each Clywedog Material Contract is valid, binding, enforceable and in full force and effect and is not effect, subject to any material default thereunder, of which the Company Enforceability Exceptions. No Person is renegotiating or has knowledge, by any party obligated a right pursuant to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all of the Company's rights under the Contracts without the payment terms of any additional amounts Clywedog Material Contract or consideration any other than ongoing fees, royalties material term or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredprovision of any Clywedog Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes theretoSchedule 2.12(a), the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) 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,
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xxi) 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,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may be required to grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(aSchedule 2.12(a) or SCHEDULE 2.12(bSchedule 2.11(b) (any such agreement, contract or commitment, a "COMPANY CONTRACT"). Each Company Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any material default thereunder, thereunder of which the Company has knowledge, Knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Merger Agreement (Healtheon Corp)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto)contemplated by this Agreement, the Company does not have, is not a party to and is not 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 (excluding "at will" employee relationships) 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 under which any with a firm or other organization provides services to the Company,organization;
(vii) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually involving payments in excess of $25,000,10,000 individually or $20,000 in the aggregate;
(viiv) any agreement Contracts 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 otherwise assume or incur any similar obligation or liability or provide a right of indemnification rescission with respect to the infringement or guaranty,
misappropriation by the Company or such other person of the Intellectual Property Rights of any person other than the Company, other than (viiii) any agreementthe Company’s standard customer warranties, contract copies of which have been made available to Buyer (ii) the public or commitment containing any covenant limiting the freedom 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 engage end users pursuant to written agreements that have been entered into in any line 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 to compete with any person,are included in Section 4.15(l) of the Company Disclosure Schedule);
(ixvi) any agreement, contract or commitment Contract relating to capital expenditures by the Company and involving future payments in excess of $25,000,10,000 individually or $20,000 in the aggregate;
(xvii) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xiviii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contract relating to the borrowing of money or extension of creditcredit other than accounts receivable and payable in the ordinary course of business;
(ix) any purchase order or contract for the purchase of materials involving in excess of $10,000 individually or $20,000 in the aggregate;
(x) any dealer, including guaranties,joint marketing, 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, contract agreement for use or commitment distribution of the Company Products; or
(xiii) any other Contract that involves $25,000 10,000 individually or $20,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) 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, enforceable against each of the parties thereto in accordance with its terms, subject to the Bankruptcy Exception, and is in full force and effect with respect to the Company and, to the Knowledge of the Shareholders, any other party thereto. The Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Contract, contract or commitment required nor to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract the Knowledge of the Shareholders is in full force and effect and is not subject to any material 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. Following True and complete copies of each Contract disclosed in the Closing DateCompany 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 fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the date hereof, and, without giving effect to the Stock Purchase, the Company has no reason to believe it will be permitted unable to exercise fulfill, when due, all of the Company's rights its obligations under the Material Contracts without that remain to be performed after the payment date hereof.
(d) All outstanding indebtedness of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise may be required to pay had the transactions contemplated by this Agreement not occurredprepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 3.12 of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not have, is not a party to and nor is 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) except as set forth in Section 3.12(iii) to the Disclosure Schedule, any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) except as set forth in Section 3.12(iv) to the Disclosure Schedule any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Companyorganization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00010,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) any agreement, contract or commitment containing any covenant limiting the freedom ability of the Company to engage in any line of business or to compete with any person,
(ixx) except as set forth in Section 3.7(k) to the Disclosure Schedule any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000,
(xxi) 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,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more,
(xiv) except as set forth in Section 3.12(xiv) to the Disclosure Schedule any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement, contract or commitment with any customer which, during the last two fiscal years of the Company, accounted for, or is expected to account for, more than 10% of the Company's revenue or trade payables, or
(xvii) except as set forth in Sections 3.12(iii), 3.12(iv), 3.12(xiv) and 3.7(k) to the Disclosure Schedule any other agreement, contract or commitment that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) . The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) which it is a party or SCHEDULE 2.12(b) by which it is bound (any such agreement, contract or commitment, a "CONTRACTContract")) which breach, violation or default would either give rise to a right to terminate a Contract or a material portion thereof or would result in additional liability to the Company in excess of $5,000 individually or in the aggregate. Each Contract is valid and binding on the Company and is in full force and effect and is not not, to the knowledge of the Company and the Shareholders after due investigation, subject to any material default thereunder, of which the Company has knowledge, thereunder by any party obligated to the Company pursuant thereto. Following The Company has obtained, or will obtain prior to the Closing DateEffective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Company will be permitted to exercise all of Merger, or as are required in order that any such Contract remain in effect without modification after 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 by this Agreement not occurredMerger ("Consents").
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto)Parent Schedule, the Company Parent does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually in excess of USD $25,000,50,000 individually or USD $100,000 in the aggregate;
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ixv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of USD $25,000,100,000 individually or USD $250,000 in the aggregate;
(xvi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the CompanyParent's business,;
(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 Parent with any third party;
(ix) any contract containing covenants that in any way purport to restrict the business activity of the Parent or any affiliate or limit the freedom of the Parent or any affiliate of the Parent to engage in any line of business or to compete with any third party, other than customary non-disclosure and confidentiality obligations contained in non-disclosure agreements entered into in the ordinary course of business, license agreements or customer agreements, and other than customary license restrictions that may be contained in Contracts entered into in the ordinary course of business;
(x) any power of attorney or other similar agreement or grant of agency;
(xi) any mortgages, indentures, loans contract entered into other than in the ordinary course of business that contains or credit agreements, security agreements or other agreements or instruments relating provides for an express undertaking by the Parent to the borrowing of money or extension of credit, including guaranties,be responsible for consequential damages;
(xii) any oral or written warranty, guaranty, and or other agreementsimilar undertaking with respect to product or contractual performance sold or extended by the Parent other than in the ordinary course of business; or
(xiii) any amendment, contract supplement, and modification (whether oral or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30written) daysin respect of any of the foregoing.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any All of the terms Contracts set forth or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(athe Parent Schedule ("Contracts") are valid, binding and enforceable 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 SCHEDULE 2.12(b) (any such agreementother equitable remedies, contract or commitment, a "CONTRACT"). Each Contract is and limitations of public policy; and shall be in full force and effect and without penalty in accordance with their terms upon consummation of the transactions contemplated hereby. The Parent does not have any present expectation or intention of not fully performing on a timely basis in all material respects all such obligations required to be performed by the Parent under any Contract set forth or required to be set forth on the Parent Schedule; no partially-filled or unfilled material customer purchase order or sales order is not subject to cancellation or any other material modification by the other party thereto or is subject to any material default thereunderpenalty, right of set-off or other charge by the other party thereto for late performance or delivery; and the Parent does not have any knowledge of any cancellation or anticipated cancellation or any breach by the other parties to any Contract set forth or required to be set forth on the Parent Schedule. The Parent is not a party to any Contract the performance of which the could reasonably be expected to have a Parent Material Adverse Effect.
(c) Company has knowledge, by any party obligated been given access to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all a true and correct copy of each of the Company's rights under written Contracts that are set forth on the Contracts without the payment of any additional amounts Parent Schedule, together with all amendments, waivers or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredchanges thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lynuxworks Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 2.17 of the Disclosure Schedule (specifying the appropriate paragraph), neither the Company Financials (including the notes thereto), the Company does not have, nor any Proxima Subsidiary is not a party to and is not 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 bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson (other than "at will" employment agreements entered into in the ordinary course of business), any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to organization;
(ii) other than the Company,
(v) 's Amended and Restated Option Plan, any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) 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) except as provided in Section 2.17(a)(vii) below, any agreement of indemnification or guaranty in excess of $25,000,, other than the Company's or any Proxima Subsidiary's indemnification obligations under their respective End User Agreements;
(vii) any agreement of indemnification under any End User Agreement that (A) does not eliminate the Company's or guaranty,any Proxima Subsidiary's potential liability for consequential or incidental damages or (B) place a cap on the potential liability of the Company or any Proxima Subsidiary's under such agreement;
(viii) 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually or $100,000 in the aggregate;
(xix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xix) 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,;
(xi) any purchase order or contract for the purchase of materials involving in excess of $25,000 individually;
(xii) any construction contracts;
(xiii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or 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 Company Products; or
(xvi) other than customer purchase orders, any other agreement, contract or commitment that involves $25,000 individually or $100,000 in the aggregate or more or with respect to any Person and is not cancelable without penalty within thirty (30) 30 days.
(b) Except as set forth in Section 2.17(b) of the Disclosure Schedule, there are no end-user customers that account for greater than five percent (5%) of the Company's consolidated net sales. Section 2.17(b) of the Disclosure Schedule contains a list of the Company's (on a consolidated basis) 10 largest resellers for each of the last fiscal year and the nine months ended September 30, 2006 and sets forth opposite the name of each such reseller the percentage of net sales attributable to such reseller. During the last 12 months, neither the Company nor any Proxima Subsidiary has received any written notices or threats of termination from any of such resellers that any such reseller intends or otherwise anticipates a termination or material reduction in the level of business with the Company or the Proxima Subsidiaries. True 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, the "Material Contracts") have been delivered to the Buyer. Each Material Contract to which the Company or the Proxima Subsidiaries is a party or any of their properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company or the Proxima 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 the Proxima Subsidiaries, except as such enforceability 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 rules of law governing specific performance, injunctive relief or other equitable remedies. The Company and/or the Proxima Subsidiaries, as applicable, is in compliance with and has not breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT")Material Contract. Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any No party obligated to the Company or any Proxima Subsidiary pursuant thereto. Following 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 Closing Datelapse 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) Each of the Company will be permitted to exercise and each of the Proxima Subsidiaries has fulfilled 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 their respective obligations required pursuant to each Material Contract to have been performed by the Company would otherwise and each of the Proxima Subsidiaries, as applicable, prior to the date hereof.
(d) All outstanding indebtedness of the Company and the Proxima Subsidiaries may be required to pay had the transactions contemplated by this Agreement not occurredprepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto2.14(a), the Company Margate does not have, is not a party to and nor is not it bound by:
(i) any collective bargaining contracts or agreements,, to which Margate is a party with respect to any Intellectual Property 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 currently effective employment or consulting agreement, agreement or contract (or commitment (excluding "at will" employee relationshipsto enter into any such agreement or contract) with an employee or individual consultant or salesperson or any currently effective consulting or sales agreement, agreement or contract (or commitment under which to enter into any such agreement or contract) with a firm or other organization provides services to the Companyorganization,
(viii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(viiv) any fidelity or surety bond or completion bond,
(v) any lease of personal property having a value individually in excess of $25,000,
(viivi) any agreement of indemnification indemnification, agreement providing for reimbursement of payments or providing a right of rescission, hold harmless or guaranty; or any obligation or liability with respect to infringement by Margate or any other person of the Intellectual Property rights of another person,
(viiivii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Margate to engage in any line of business or to compete with any person,
(ixviii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000 individually or $25,000 in the aggregate,
(xix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the CompanyMargate's business,
(xix) 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,
(xi) any purchase order or contract for the purchase of materials involving in excess of $10,000 individually or $25,000 in the aggregate,
(xii) any construction contracts,
(xiii) any distribution, joint marketing or development agreement, or
(xiv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company Margate is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any material agreement, contract contract, covenant, instrument, lease, license or commitment required to be set forth on SCHEDULE 2.13(a) which Margate is a party or SCHEDULE 2.12(b) by which it is bound (any such agreement, contract or commitment, collectively a "CONTRACT"), nor is Margate 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 on SCHEDULE 2.14(b), is not subject to any material default thereunder, of which the Company has knowledge, thereunder by any party obligated to the Company Margate pursuant thereto. Following Margate has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Company will be permitted Reorganization or the Merger or for such Contracts to exercise all of remain in effect without modification after 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 by this Agreement not occurredClosing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Margate Industries Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth disclosed in ------------------------------------- Section 2.12 of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not have, have and is not a party to and is not bound byto:
(ia) any collective bargaining agreements,
(iib) any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations,
(iiic) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,
(ivd) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services organization, not terminable by the Company on thirty days notice without liability, except to the extent general principles of wrongful termination law may limit the Company's ability to terminate employees at will,
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vif) any fidelity or surety bond or completion bond,
(g) any lease of personal property having a value individually in excess of $25,00050,000,
(viih) any agreement of indemnification or guarantyguaranty not entered into in the ordinary course of business,
(viiii) 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,
(ixj) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,00050,000,
(xk) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise,
(xil) 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 guarantiesguaranties referred to in clause (h) hereof,
(xiim) any purchase order or contract for the purchase of raw materials or acquisition of assets involving $50,000 or more,
(n) any construction contracts,
(o) any distribution, joint marketing or development agreement,
(p) any other agreement, contract or commitment that which involves $25,000 50,000 or more or and is not cancelable without penalty within thirty (30) days., or
(bq) any agreement which is otherwise material to the Company's business. The Company has not breached, violated or defaulted under, or received notice in writing any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be which it is bound (including those set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (in any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all of the lists separately certified by the Company's rights under ) in such manner as would permit any other party to cancel or terminate the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredsame.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Flycast Communications Corp)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in for this Agreement, neither the Company Financials (including the notes thereto), the or any Company does not have, Subsidiary is not a party to and is not or bound byby any of the following Contracts:
(i) (A) any collective bargaining agreements,Contract providing for any severance or termination pay, change of control, transaction or retention bonus or similar payments, or equity acceleration (in cash or otherwise, other than as required by applicable Law) or similar payment or benefit in connection with the consummation of the Merger (except in accordance with applicable Law by paying (1) the statutory minimum notice or (2) any statutorily required severance or other termination pay, as applicable), (B) any employment agreement, offer letter, or independent contractor agreement with any current Company Service Provider that is not immediately terminable at-will by the Company without advance notice, severance, or other similar cost or Liability, (C) any separation agreement or settlement agreement with any Company Service Provider or other Person, under which the Company has any current actual or potential Liability, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity, (D) any Contract (x) to provide any sign-on, referral, or retention bonus under which the Company has any current actual or potential Liability or (y) subject to any clawback policy or provision or (E) any Collective Bargaining Agreement;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement Contract or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or plan, stock purchase plan, or other equity or equity-based 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 or in connection with any of the transactions contemplated by this Agreement or the value of any of the benefits of which will shall be calculated on the basis of any of the transactions contemplated by this Agreement,Agreement (except as required under Section 411(d)(3) of the Code);
(viiii) any Lease Agreement or any lease of any personal property having a value individually involving future payments in any amount in excess of $25,000,500,000 in fiscal year 2024 or any other future fiscal year;
(viiiv) any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in any amount in excess of $25,000,100,000 in fiscal year 2024 or any other future fiscal year;
(xv) any agreement, contract or commitment Contract relating to the disposition or acquisition of ownership of assets or any interest in any business enterprise outside the ordinary course Ordinary Course of the Company's business,Business;
(xivi) 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 or group of related Contracts with the same vendor or supplier for the purchase of tangible items of equipment or related services in an amount payable by the Company in excess of $25,000 in the aggregate in any fiscal year;
(viii) any Contract (A) pursuant to which any Intellectual Property is provided or licensed to the Company by any Person or is provided or licensed to any Person by the Company (other than (1) non-exclusive software licenses or software-as-a-service agreements with respect to commercially-available, off-the-shelf software not incorporated into Company Products and procured for aggregate fees on a yearly basis of $100,000 or less, (2) licenses for Open Source Software, and (3) non-exclusive licenses granted by the Company to customers, Company Service Providers, and vendors, in each case, in the Ordinary Course of Business on the Company’s standard forms of agreement (or materially similar terms)), (B) under which any Person has developed or has been engaged to develop any material Intellectual Property for the Company (excluding agreements with vendors and Company Services Providers entered into in the Ordinary Course of Business on the Company’s standard forms of agreement (or materially similar terms) under which such Persons assign rights in all such developed Intellectual Property to the Company) or under which the Company has developed or has been engaged to develop any material Intellectual Property for any Person, or (C) entered into to settle or resolve any Intellectual Property-related dispute or otherwise affecting the Company’s rights to use or enforce any Company Owned IP, including guaranties,settlement agreements, coexistence agreements, covenant not to sue agreements, and consent to use agreements;
(ix) any Contract with a Top Supplier;
(x) any Contract with a Top Customer;
(xi) any Contract containing a provision that limits, restricts or impairs the Company’s ability to operate in any geography of the world or with any Person, including all Contracts (A) that contain covenants of non-competition, rights of first refusal or negotiation, non-solicitation of customers, and exclusive dealings arrangements, and any similar obligations of any of the foregoing, (B) under which the Company is restricted from hiring or soliciting potential employees, consultants or independent contractors and which restriction on hiring or soliciting potential employees, consultants or independent contractors would reasonably be expected to be material to Parent and its Subsidiaries’ or the Company’s ability to operate their respective businesses as currently conducted or (C) that apply to or purport to apply to Company’s Affiliates;
(xii) any agency, dealer, distribution, sales representative, remarketer, reseller, or other agreement, contract 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 do not materially deviate from the terms set forth in the form of reseller agreement made available to Parent);
(xiii) (A) any legal partnership or commitment joint venture Contract or (B) any Contract that involves a sharing of revenues, profits, cash flows or losses with other Persons;
(xiv) any Contract 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 basis or similar terms;
(xv) any right of first offer, right of first refusal, standstill or similar agreement (A) containing provisions that grant a third party a right to purchase, or prohibit a third party from purchasing, Equity Interests of the Company or assets of the Company or (B) otherwise seeking to influence or exercise control over the Company;
(xvi) any Contract pursuant to which the Company 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;
(xvii) any Contract with any Interested Party, including any agreement of indemnification with officers or directors of the Company;
(xviii) any Contract with any investment banker, broker, advisor, or 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 Legal Proceeding in each case, that involves material outstanding obligations of the Company;
(xx) any other Contract or group of related Contracts with a single counterparty that have not been otherwise disclosed pursuant to this Section 3.12 that involves an anticipated amount payable by or to the Company in excess of $25,000 250,000 in the aggregate in fiscal year 2024 or more any other future fiscal year; and
(xxi) any Contract providing for “offshore” development of any material items of Intellectual Property by, for or is not cancelable without penalty within thirty (30) dayson behalf of the Company.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any made available correct and complete copies of the terms or conditions of any agreement, contract or commitment (1) each Contract required to be set forth on SCHEDULE 2.13(adisclosed pursuant to Sections 3.2, 3.12, 3.13 and 3.19(a) together with any and all material amendments and supplements thereto and “side letters” and similar documentation relating thereto, and (2) summaries of each oral Material Contract. For the purposes of this Agreement, each of the foregoing Contracts referenced in this Section 3.12(b) as well as any Contracts entered into subsequent to the Agreement Date and prior to the Closing Date that would have been required to be disclosed pursuant to Sections 3.2, 3.12, 3.13 and 3.19(a) if such Contract had been in effect as of the Closing Date, shall each be a “Material Contract” and collectively are the “Material Contracts.”
(c) The Company (or SCHEDULE 2.12(bthe Company Subsidiary party thereto) (has performed in all material respects all of the obligations required to be performed by it and is entitled to all benefits under, and has not received any such agreementwritten or, contract or commitmentto the Knowledge of the Company, a "CONTRACT")oral notice alleging it to be in default in respect of, any Material Contract. Each Contract of the Material Contracts is in full force and effect and is not effect, subject only to any material default thereunderthe effect, if any, of which the Enforcement Exceptions. There exists (x) no default or event of default under any Material Contract by the Company has knowledgeor any Company Subsidiary or, by to the Knowledge of the Company, any other party obligated thereto, and (y) no event, occurrence, condition or act, with respect to the Company pursuant thereto. Following or any Company Subsidiary, or to the Closing Date, the Company will be permitted to exercise all Knowledge of the Company's rights , with respect to any other party to a Material Contract, that, with the giving of notice, the lapse of time, would reasonably be expected to (i) become a default or event of default under any Material Contract or (ii) give any third party (A) the Contracts without right to declare a default or exercise any remedy under any Material Contract, (B) the payment 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 additional amounts material obligation of the Company or consideration any Company Subsidiary under any Material Contract or (D) the right to cancel (other than ongoing feesat the expiration of the term of any Contract in accordance with its terms), royalties terminate or payments which modify any Material Contract. Neither the Company would otherwise be required nor any Company Subsidiary has received any written (nor, to pay had the transactions contemplated by this Agreement not occurredKnowledge of the Company, oral) notice to cancel, fail to renew or adversely modify any Material Contract.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Clearwater Analytics Holdings, Inc.)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto), the The Company does not have, is not a party to and or is not bound by:
(i) any collective bargaining agreements,contract, 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(viii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiv) any fidelity or surety bond or completion bond;
(v) any lease of personal property having a value individually with fixed annual rental payments in excess of $25,000,;
(vi) 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 the Intellectual Property of any third party;
(vii) any agreement of indemnification or guaranty,
(viii) 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,;
(ixviii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,;
(xix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xix) 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,;
(xi) any purchase order or contract for the purchase of materials involving $25,000 or more;
(xii) any construction contracts;
(xiii) any distribution, joint marketing or development agreement; or
(xiv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract contract, license or commitment required to be set forth on SCHEDULE 2.13(a) which it is a party or SCHEDULE 2.12(b) by which it is bound (any such agreement, contract contract, license or commitment, a "CONTRACTContract"), 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 effect, and, to the knowledge of the Company, all other parties to each Contract are in compliance with, and is have not subject breached any term of, such Contract. The Company has obtained or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any material default thereunder, of which Contract as are required thereunder in connection with the Company has knowledge, by any party obligated Merger or to remain in effect without modification after the Company pursuant theretoClosing. Following the Closing DateEffective Time, the Company will be permitted to exercise all of the Company's rights under the Contracts to 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 than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredpay.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tut Systems Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 4.15(a) or as specifically set forth in of the Disclosure Schedule (specifying the appropriate clause of this Section 4.15(a) to which such Contract relates), neither the Company Financials (including the notes thereto), the Company does not have, nor any of its Subsidiaries nor any of its ERISA Affiliates is not a party to and to, or is not bound as of the date hereof by:
(i) (A) any collective bargaining agreements,Employee Agreement, Contract or commitment to grant any bonus, change of control, severance or other termination-related payment (in cash or equity or otherwise) to any Employee; or (B) any Employee Agreement which cannot be terminated without cause at the discretion of the Company, its Subsidiaries or the relevant ERISA Affiliate, as applicable;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreementpolicy, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement past practice or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, or any of the plan providing similar equity awards, for which any benefits of which will be provided or increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (or any events following this Agreement, contingent or otherwise), or for which the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(iii) any fidelity or surety bond or completion bond;
(iv) any lease of, or purchase Contract for, personal property having a value in excess of $50,000 individually or $150,000 in the aggregate, or any Lease Agreements;
(v) any Contract of indemnification, hold harmless agreement or guaranty, other than: Standard Form Agreements, Standard NDAs, Inbound Licenses, Contracts for Open Source Software or Generally Commercially Available Code (other than Generally Commercially Available Code incorporated into any Company Products) and any other Contract listed elsewhere in this Section 4.15(a);
(vi) any lease of personal property having a value individually in excess of $25,000,
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or $150,000 in the aggregate;
(xvii) any agreement, contract or commitment Contract relating to the disposition or acquisition of material assets or any equity or debt interest in any Person or business enterprise outside the ordinary course of the Company's business,enterprise;
(xiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements Contracts or instruments relating to the borrowing of money Indebtedness or extension of credit;
(ix) any Contract with any Top Customer or Top Supplier;
(x) any sales representative, including guaranties,original equipment manufacturer, value added, remarketer, reseller, distribution, or independent software vendor, or other Contract for sale or distribution of the products, technology or services of the Company or any of its Subsidiaries;
(xi) any Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation (MFN) basis or similar terms;
(xii) any Contract pursuant to which the Company or any of its Subsidiaries is bound to, or has committed to provide or license, any product or service to any third party (including any reseller or distributor of products) on an exclusive basis or to acquire or license any product or service on an exclusive basis from a third party;
(xiii) any Contract pursuant to which the Company or any of its Subsidiaries has licensed or assigned to any third party any Intellectual Property Rights other agreement, contract than Ordinary Course Outbound Agreements;
(xiv) any other Contract that requires future payments of more than $50,000 individually or commitment that involves $25,000 100,000 in the aggregate from or more to the Company or any of its Subsidiaries and does not expire or is not cancelable without penalty within thirty ninety (3090) daysdays (specifically excluding employment agreements and offer letters);
(xv) any Contract pursuant to which the Company or any of its Subsidiaries has undertaken to deliver, or pursuant to which the receipt of revenue is contingent upon the delivery of, products or services;
(xvi) any Contract currently in effect with any former officer, director, member or stockholder (or group of members or stockholders) of the Company or any of its Subsidiaries;
(xvii) any power of attorney relating to the Company or any of its Subsidiaries that is currently effective and outstanding;
(xviii) other than customary release agreements entered into in the ordinary course of business in connection with the termination of Employees which have been Made Available to Parent, any settlement or severance Contract with any Employee, group of Employees, or Governmental Authority; and
(xix) any collective bargaining Contract or similar Contract, including any Contract with any union, works council, trade union, or other labor relations entity.
(b) The Company has not breachedMade Available true, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any correct and complete copies of the terms or conditions of any agreement, contract or commitment all Contracts required to be disclosed pursuant to Section 4.11(e), Section 4.13(c), Section 4.14, and this Section 4.15 existing as of the date hereof (each such Contract, including any such Contracts entered into after the date hereof and subject to the descriptions set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitmentabove, a "CONTRACT"“Material Contract” and collectively, the “Material Contracts”). .
(c) 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) are subject is a valid and binding agreement of the Company or such Subsidiary, as applicable, enforceable against the Company or such Subsidiary, as applicable, in accordance with its terms, and is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated with respect to the Company pursuant thereto. Following or such Subsidiary, as applicable, and, to the Closing Date, the Company will be permitted to exercise all Knowledge of the Company's rights , any other party thereto subject to (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies. Neither the Company nor any of its Subsidiaries has violated or is in violation of, in any material respect, any provision of, or has committed or failed to perform any act which, with or without notice, lapse of time or both would constitute a material breach of, a default or an event of default under the Contracts provisions of, any Material Contract. To the Knowledge of the Company, (i) no Person other than the Company or its Subsidiaries, which is party to any Material Contract, has violated or is in violation of, in any material respect, any provision of, or has committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a material breach of, a default or an event of default under the payment provisions of any additional amounts Material Contract, and (ii) to the Knowledge of the Company, no event or consideration other than ongoing feescondition has occurred that would reasonably be expected to result in a violation of, royalties in any material respect, any provision of, or payments which the Company failure to perform any act which, with or without notice, lapse of time or both, would otherwise be required to pay had constitute a material breach of, a default or an event of default under the provisions of any Material Contract. Except as set forth in Section 4.5 of the Disclosure Schedule, no Material Contract requires the obtaining of any consent, approval, notation or waiver of any third party in connection with the transactions contemplated by this Agreement not occurredAgreement. None of the Company or its Subsidiaries or any of its or their officers, directors, or employees, by or on behalf of the Company or its Subsidiaries, is party to or has ever been a party to a Government Contract. As of the date hereof, there are no new Contracts that are being actively negotiated and that would be required to be listed on Section 4.15(a) of the Disclosure Schedule.
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
Agreements, Contracts and Commitments. Part 2.9 of the Company Disclosure Schedule identifies:
(a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the each Company Financials (including the notes thereto), the Company does not have, is not a party Contract relating to and is 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, severance, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,, other than Company Contracts on the Company’s standard form offer letter entered into in the Ordinary Course of Business;
(ivb) each Company Contract relating to the employment of, or the performance of employment-related services by, any employment Person, including any employee, consultant or consulting agreementindependent contractor, contract not terminable at will by the Company or commitment (excluding "its Subsidiaries, except to the extent general principles of wrongful termination law may limit the Company’s, the Company’s Subsidiaries’ or such successor’s ability to terminate employees at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,;
(vc) each Company Contract relating to any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Contemplated Transactions;
(vid) any lease of personal property having a value individually in excess of $25,000,
(vii) each Company Contract relating to any agreement of indemnification or guaranty,guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between the Company and any of its officers or directors;
(viiie) any agreement, contract or commitment each Company Contract containing any covenant limiting the freedom of the Company Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or to compete with any person,Person;
(ixf) any agreement, contract or commitment each Company Contract relating to capital expenditures and involving future requiring payments after the date of this Agreement in excess of $25,000,250,000 and not cancelable without penalty;
(xg) any agreement, contract or commitment each Company Contract currently in force relating to the disposition or acquisition of material assets or any ownership interest in any business enterprise outside the ordinary course of the Company's business,Entity;
(xih) each Company Contract relating to any mortgages, indentures, loans loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties,credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company or any Company Subsidiary or any loans or debt obligations with officers or directors of the Company;
(xiii) all Contracts pursuant to which the Company grants any Person a license under any Company-Owned IP Rights, other than software licensed to customers in the Ordinary Course of Business;
(j) other than “shrink wrap” and similar generally available commercial end-user licenses to software, all Contracts pursuant to which the Company or a Company Subsidiary is licensed to use any Third-Party IP Rights outside the Ordinary Course of Business;
(k) each Company Contract currently in force (i) appointing a third party to distribute any Company product, service or technology (identifying any that contain exclusivity provisions); (ii) for a third party to provide services or products with respect to any pre-clinical or clinical development activities of the Company (iii) under which the Company or its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or such Company Subsidiary; or (iv) to license any third party to manufacture or produce any Company product, service or technology or any Contract to sell, distribute or commercialize any Company products or service except agreements in the Ordinary Course of Business;
(l) each Company Contract with any financial advisor, broker, finder, investment banker or other Person providing advisory services to the Company in connection with the Contemplated Transactions; or
(m) any other agreement, contract or commitment that which is not terminable at will (with no penalty or payment) by the Company which involves payment or receipt by the Company or its Subsidiaries under any such agreement, contract or commitment of $25,000 250,000 or more in the aggregate or is not cancelable without penalty within thirty (30) days.
(b) obligations after the date of this Agreement in excess of $250,000 in the aggregate. The Company has made available to PTI accurate and complete (except for applicable redactions thereto) copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. Except as set forth on Part 2.9 of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementof the agreements, contract contracts or commitment required commitments to be set forth on SCHEDULE 2.13(awhich the Company or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) or SCHEDULE 2.12(bthrough (l) above (any such agreement, contract or commitment, a "CONTRACT")“Company Material Contract”) in such manner as would permit any party to cancel or terminate any Company Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. Each Contract is The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in full force and effect and is not subject any material payment or payments becoming due from the Company, any Company Subsidiary or the Surviving Corporation to any material default thereunder, of which the Person under any Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredContract.
Appears in 1 contract
Agreements, Contracts and Commitments. Except for Employee Plans (a) Except as defined in Section 2.21), as contemplated by this Agreement or as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto)Schedule 2.12, the Company does not have, have and is not a party to and is not bound byto:
(ia) any collective bargaining agreements,agreement;
(iib) any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations,;
(iiic) any bonus, deferred compensation, incentive compensation, pension, profit profit- sharing or retirement plans, or any other employee benefit plans or arrangements,;
(ivd) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services not terminable by the Company on 30 days' notice without liability except to the extent applicable local law and/or general principles of wrongful termination law may limit the Company,'s ability to terminate such employees;
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vif) any fidelity or surety bond or completion bond;
(g) any lease of personal property having a value individually in excess of $25,000,property;
(viih) any agreement of indemnification or guaranty,;
(viiii) 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,;
(ixj) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,obligations;
(xk) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xil) 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,guaranties referred to in clause (h) hereof;
(xiim) any purchase order or contract for the purchase of raw materials or acquisition of assets;
(n) any construction contracts;
(o) any distribution, joint marketing or development agreement; or
(p) any other agreement, contract or commitment that which involves $25,000 5,000 or more or and is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epic Design Technology Inc /Ca/)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 3.12(a) or as specifically set forth in of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not havehave any continuing obligations under, is not a party to and or is 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") which relate to Employees employed in connection with, or providing services to, the Media Business, 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,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,arrangements which relates to Employees employed in connection with, or providing services to, the Media Business;
(iviii) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee Employee or individual consultant employed by, or salesperson providing services to, the Media Business or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services relating to the Company,Media Business;
(viv) any agreement or plan, including, without limitation, including any stock share option plan, stock share appreciation rights plan or stock share purchase plan, plan which relates to any of the benefits of which will be increasedEmployee employed by, or providing services to, the vesting of benefits of which will be acceleratedMedia Business;
(v) any fidelity or surety bond or completion bond relating to, by or arising in connection with, the occurrence of any of the transactions contemplated by this Agreement Acquired Assets or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Media Business; ------------------------------------------ "[***]" INDICATES REDACTED INFORMATION FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ------------------------------------------
(vi) any lease of real or personal property having a value individually relating to, or arising in excess of $25,000,connection with, the Acquired Assets or the Media Business;
(vii) any agreement of indemnification indemnification, guaranty or guaranty,environmental corrective action or clean up obligation relating to, or arising in connection with, the Acquired Assets or the Media Business;
(viii) 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,Person, relating to, or arising in connection with, the Acquired Assets or the Media Business;
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,500,000 arising in connection with the Acquired Assets or the Media Business;
(x) any agreement, contract or commitment relating to the disposition of any Acquired Assets or the acquisition of material assets or any interest in any business enterprise outside the ordinary course of business, consistent with past practices, relating to, or arising in connection with, the Company's business,Acquired Assets or the Media Business;
(xi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit arising in connection with, including guaranties,the Acquired Assets or the Media Business;
(xii) any Purchase Order or contract for the purchase of raw materials relating to, or arising in connection with, the Acquired Assets or the Media Business;
(xiii) any distribution, joint marketing or development agreement relating to, or arising in connection with, the Acquired Assets or the Media Business;
(xiv) any other agreement, contract or commitment that involves $25,000 100,000 or more relating to, or arising in connection with, the Acquired Assets or the Media Business; or
(xv) any agreement, contract or commitment that is not cancelable without material penalty within thirty (30) daysdays relating to, or arising in connection with, the Acquired Assets or the Media Business.
(b) The Except as noted in Section 3.12(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 any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(ain Section 3.12(a) or SCHEDULE 2.12(b) of the Company Disclosure Schedule (any such agreementcollectively, contract or commitment"Contracts" and each, a "CONTRACTContract"), nor, to the Company's knowledge, are there any events or circumstances that would in the Company's opinion be reasonably likely to give rise to 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 3.12(b) of the Company ------------------------------------------ "[***]" INDICATES REDACTED INFORMATION FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ------------------------------------------ Disclosure Schedule, is not subject to any material default thereunder, thereunder of which the Company has knowledge, is aware by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts specified in clauses (i) through (xvii) below (collectively, the “Material Contracts”). Except as set forth on SCHEDULE 2.13(ain Section 2.12(a) or as specifically set forth in of the Company Financials (including the notes thereto)Schedule, the Company does not have, is not a party to and nor is not it bound by:
(i) any collective bargaining agreements,;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,pay;
(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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to 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 by this Agreement,hereby or thereby;
(vi) any lease of personal property having a value individually in excess of $25,000,performance bond;
(vii) any agreement lease of indemnification real or guaranty,personal property involving future payments in excess of $40,000 not cancelable by the Company without penalty of less than $40,000;
(viii) any agreement of indemnification, guaranty or suretyship 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,;
(x) any agreement, contract or commitment relating to capital expenditures in excess of $40,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the future disposition or acquisition of assets assets, properties or any interest in any business enterprise outside the ordinary course of the Company's business,enterprise;
(xixii) 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,other than Company credit cards with a credit limit of less than $10,000;
(xiixiii) 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;
(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) The Company has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be Material Contract. Except as set forth on SCHEDULE 2.13(a) or SCHEDULE in Section 2.12(b) (any such agreementof the Company Schedule, contract or commitment, a "CONTRACT"). Each each Material Contract is in full force and effect and is not subject to any material breach, default thereunder, of which or violation thereunder by the Company has knowledgeor, to the Shareholders’ Knowledge, by any party obligated to the Company pursuant thereto. Following The Company has obtained, or will obtain prior to the Closing Date, the Company will be permitted all necessary consents, waivers and approvals of parties to exercise all of the Company's rights under the any Material Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be as are required to pay had obtain in connection with the transactions contemplated hereby and by this Agreement not occurredthe Ancillary Agreements (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (aSCHEDULE 3.13(a) lists all written contracts or other agreements not included on Schedule 3.12(g) to which the Company is a party. Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto3.13(a), the Company does has not have, been nor is not currently a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,.
(vvii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viviii) any lease of personal property having a value individually in excess of $25,000,fidelity or surety bond or completion bond;
(viiix) any agreement, contract or commitment under which it has limited or restricted its right to compete with any person in any respect;
(x) any agreement of indemnification or guaranty,;
(viiixi) 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,;
(ixxii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,5,000;
(xxiii) 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,
(xi) 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,
(xii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.;
Appears in 1 contract
Sources: Agreement and Plan of Merger (North American Scientific Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes theretoSchedule 2.12(a), the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) 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,
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,
(xvii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days,
(xviii) any licenses of intellectual property to or from any person, except for any commercial off-the-shelf software licenses, label licenses, “shrink wrap” or “click through” licenses or any other similar publicly available end user license agreements,
(xix) any agreement containing registration rights with respect to any of its securities or pursuant to which the Company may be obligated to register any securities,
(xx) any contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of the Company or requiring any payments or other distributions based on such profits, revenues or cash flows, or
(xxi) any contracts or agreements with any director, officer or material stockholder of the Company, or with any person related to any such person or with any company or other organization in which any director, officer, or material stockholder of the Company, or anyone related to any such person, has a direct or indirect financial interest (for purposes hereof, the term “material stockholder” shall mean any person or entity that owns, beneficially or of record, more than five percent (5%) of any class or series of the Company’s capital stock).
(b) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(aSchedule 2.12(a) or SCHEDULE 2.12(band Schedule 2.11(b) (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 2.12(b), is not subject to any material default thereunder, of which the Company has knowledge, thereunder by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 2.14 of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not have, is not a party to and nor is not it bound by:by any of the following Contracts that are currently in force (each, a "Material Contract”):
(i) any collective bargaining agreements,vendor or supply Contract involving expenditures of greater than $25,000 per year by the Company for the purchase of goods or services;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonuscurrent employment, 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 (excluding "at will" employee relationships) Contract with an employee or individual consultant consultant, contractor or salesperson that requires payment in excess of $150,000 per year, except for employee offer letters or any consulting employment contracts that are terminable by the Company at will and without notice or sales agreement, contract severance/termination benefits or commitment under which any firm or other organization provides services to the Company,similar payments;
(viii) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Agreement (including any severance or change of control agreements);
(viiv) any lease of personal property having a value individually in excess or equipment requiring payments of greater than $25,000,25,000 per year;
(viiv) any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually or $500,000 in the aggregate;
(xvi) any agreement, contract or commitment relating to Contract for the disposition or acquisition of material assets or any interest in any business enterprise enterprise, in each case that is outside the ordinary course of the business of the Company's business,, consistent with past practices;
(xivii) any mortgages, indentures, guaranties, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guarantiesother than accounts receivables and payables in the ordinary course of business which are reflected on the Current Balance Sheet;
(viii) any powers of attorney;
(ix) any Contract containing covenants or other obligations by the Company granting to a third Person, or containing any current or future commitments by the Company to a third Person regarding, exclusive rights, non-competition, non-solicitation, “most favored nations,” restriction on the operation or scope of the Company’s business or operations, or similar terms, in each case other than (A) agreements with employees, consultants and contractors in the Company’s standard form, a copy of which has been provided to Parent and (B) restrictions on the use of Licensed IP set forth in a Contract granting the Company rights to Licensed IP;
(x) any Contract pursuant to which Company licenses to any Person any Company Owned IP that is (A) material to the business of the Company or (B) used and distributed in a Company Product, but excluding the Standard License Out Contracts;
(xi) any Contract pursuant to which any Person licenses Intellectual Property to the Company that is material to the business of the Company, but excluding the Standard License In Contracts; or
(xii) any other agreement, contract or commitment Contract not identified in clauses (i) through (x) above that involves $25,000 50,000 or more or and is not cancelable by the Company without penalty within thirty ninety (3090) days.
(b) The Company is in compliance with, and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementMaterial Contract, contract nor does the Company have any Knowledge of any event that would constitute such a breach, violation or commitment required default with the lapse of time, giving of notice or both, nor to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (the Knowledge of the Company is any party obligated to the Company pursuant to any such agreement, contract or commitment, a "CONTRACT")Material Contract subject to any default thereunder. Each Material Contract is in full force and effect and is not except to the extent that the same may be subject to any material default thereunderthe Laws of general application relating to bankruptcy, insolvency, reorganization and the relief of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurreddebtors.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Schedule 4.13, neither the Company Financials (including the notes thereto), the Company does not have, nor any Subsidiary is not a party to and is not 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 any officer (excluding "at will" employee relationships) with an employee or individual consultant or salesperson including, without limitation, any vice president)or member of the Company's or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,Subsidiary's Board of Directors;
(vb) 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 Other Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi) any lease of personal property having a value individually in excess of $25,000,
(viic) any agreement of indemnification or guaranty,guaranty other than indemnification agreements between the Company and its Subsidiaries and any of their officers or directors;
(viiid) any agreement, contract or commitment containing any covenant limiting the freedom of the Company or its Subsidiaries to engage in any line of business or to compete with any person,Person or granting any exclusive distribution rights;
(ixe) any agreement, contract or commitment relating to capital expenditures and involving future payments currently in excess of $25,000,
(x) any agreement, contract or commitment force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xif) any mortgagesjoint marketing or development agreement;
(g) any agreement, indenturescontract or commitment currently in force to provide or receive source code for any product, loans service or credit agreementstechnology except for maintenance purposes;
(h) any agreement, security agreements contract or other agreements commitment currently in force to license any third party to manufacture or instruments reproduce any product, service or technology provided by the Company or its Subsidiaries;
(i) any supply agreement involving an aggregate amount of $250,000 or more;
(j) any distribution agreement involving an aggregate amount of $250,000 or more;
(k) any agreement relating to the borrowing acquisition, transfer, development, sharing or license of money or extension of credit, including guaranties,any asset;
(xiil) any agreement that contemplates or involves (i) the payment or delivery of cash or other consideration on or after the date hereof having a value in excess of $250,000 in the aggregate or (ii) the performance of services on or after the date hereof having a value in excess of $250,000 in the aggregate;
(i) any agreement to which any United States federal or foreign Governmental Authority is a party or has any rights or obligations, other than purchase orders issued in the ordinary course of business or (ii) under which any Governmental Authority has any non-standard indemnity or audit obligations; and
(n) any other agreement, contract not otherwise identified in clauses "(a)" through "(m)", if the Company's performance or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The breach of such agreement could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary, nor to the Company's Knowledge, any other party to a Material Contract, 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 required commitments to be set forth on SCHEDULE 2.13(awhich the Company or any of its Subsidiaries are parties or by which they are bound of the type described in clauses (a) or SCHEDULE 2.12(bthrough (n) above (any such agreement, contract or commitment, a "CONTRACTMaterial 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 such Material Contract, or would permit any other party to seek damages, which would be reasonably likely to be material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Dateand its Subsidiaries, 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 by this Agreement not occurredtaken as a whole.
Appears in 1 contract
Sources: Senior Note and Warrant Purchase Agreement (Cardiac Science Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto)Schedule 4.16, the Company does not have, and is not a party to and or is not bound byby any of the following Contracts:
(i) any collective bargaining agreements,agreement;
(ii) any agreements employment or arrangements that contain consulting Contract commitment with any severance pay Employee, contractor, consultant, advisor or post-employment liabilities or obligations,member 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 arrangements,arrangement, that is not listed on Schedule 4.24(a);
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) commission and/or sales agreement with an employee or Employee, individual consultant or salesperson salesperson, or any consulting or sales agreement, contract or commitment under which any a firm or other organization 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, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of the Closing or any of the other transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of the Closing or any of the other transactions contemplated by this Agreement,Agreement or the Related Agreements;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $25,000,
(vii) any agreement of indemnification or guaranty,25,000 per annum;
(viii) any agreement, contract Contract of indemnification or commitment guaranty to any third party other than pursuant to the Standard Support Agreement;
(ix) any 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 person,Person, or which grants to any Person any exclusivity to any geographic territory, any customer, or any Customer Product or Service;
(ixx) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,25,000 per annum in any individual case or $50,000 per annum in the aggregate;
(xxi) any agreement, contract or commitment Contract not already fully performed relating to the acquisition or disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,’s business or any agreement relating to the acquisition of assets or any interest in any business enterprise;
(xixii) 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 creditcredit or evidencing any Debt;
(xiii) other than the Standard Support Agreements, any purchase order or Contract (including for services) involving in excess of $25,000 per annum in any individual case or $50,000 per annum or more in the aggregate;
(xiv) any dealer, 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 Contract pursuant to which the Company has granted or may be obligated to grant in the future, to any Person, a source-code license or option or other right to use or acquire source code, including guaranties,any Contract that provide for source code escrow arrangements;
(xiixvi) 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 $25,000 per annum or more or is not cancelable without penalty within thirty upon sixty (3060) days.
(b) 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 is not in default thereunder, nor to the knowledge of the Seller Parties is any party obligated to the Company pursuant to any such Contract in default thereunder. The Company has 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 required occurrence that would reasonably be expected to be set forth on SCHEDULE 2.13(a) constitute such a breach, violation or SCHEDULE 2.12(b) default (any such agreement, contract with or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all of the Company's rights under the Contracts without the payment lapse of any additional amounts time, giving of notice or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredboth).
Appears in 1 contract
Sources: Stock Purchase Agreement (Descartes Systems Group Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 2.11(a) or as specifically set forth in of the Company Financials (including Lanacom Disclosure Schedule, neither Lanacom nor any of the notes thereto)Lanacom Subsidiaries have continuing obligations under, the Company does not have, is not nor are any of them a party to and is not nor are bound by:
(i) any voluntary recognition agreements, accreditation order or collective bargaining agreements,;
(ii) any agreements or arrangements that contain any severance pay or post-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, incentive, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,, except as provided herein;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value annual lease payments individually in excess of $25,000,;
(viiviii) any agreement of indemnification indemnification, warranty or guaranty,guaranty other than in the ordinary course of business;
(viiiix) any agreement, contract or commitment containing any covenant limiting the freedom of Lanacom or any of the Company Lanacom Subsidiaries to engage in any line of business or to compete with any person,;
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,;
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of assets any material assets, or any interest in any business enterprise outside the ordinary course of Lanacom and the Company's Lanacom Subsidiaries' business,, taken as a whole;
(xixii) 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,;
(xiixiii) any distribution, joint marketing or development agreement;
(xiv) any agreement, contract or commitment with any customer which, during the last two fiscal years of Lanacom, accounted, or is expected to account during Lanacom's current fiscal year, for more than 5% of Lanacom's revenue or trade payables;
(xv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days;
(xvi) transfer or license to any third party or otherwise extend, amend or modify any rights to Lanacom Intellectual Property or acquire, license or otherwise procure any intellectual property right of any third party; or
(xvii) enter into any agreement restricting Lanacom or any of the Lanacom Subsidiaries from any business activity.
(b) The Company has not Except for any alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.11(b) of the Lanacom Disclosure Schedule, neither Lanacom nor any of the Lanacom Subsidiaries have 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 which it is bound (including those set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) in the Lanacom Disclosure Schedule (any such agreement, contract or commitment, of Lanacom or its Subsidiaries (a "CONTRACTLanacom Contract")). Each Lanacom Contract is in full force and effect and and, except as otherwise disclosed in Section 2.11(b) of the Lanacom Disclosure Schedule, is not subject to any material default thereunder, thereunder of which Lanacom or any of the Company has knowledge, Lanacom Subsidiaries is aware by any party obligated to Lanacom or any of the Company Lanacom Subsidiaries pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Acquisition (Backweb Technologies LTD)
Agreements, Contracts and Commitments. (a) Except as contemplated by this Agreement or set forth on SCHEDULE 2.13(a) or as specifically set forth in Schedule 2.16, neither the Company Financials (including the notes thereto), the Company does not havenor any Subsidiary has, is not a party to and to, or is not 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 obligations,a 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 (excluding "at will" employee relationships) agreement with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other organization provides services to the Company,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, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vig) any fidelity or surety bond or completion bond;
(h) any agreement or group of related agreements for the lease of personal property having a value individually in excess of $25,000,;
(viii) any agreement of indemnification or guaranty,guaranty other than as set forth in the Form License, subject to such reasonable variations therein that are not individually materially adverse to the Company;
(viiij) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,person or entity;
(ixk) any agreement, contract or commitment agreement relating to the purchase of materials or capital expenditures and involving future payments in excess of $25,000,;
(xl) any agreement, contract or commitment agreement relating to the disposition or acquisition of 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 business,enterprise;
(xim) 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 creditcredit to the Company or any Subsidiary;
(n) any agreement concerning confidentiality (other than those entered in the ordinary and usual course of business);
(o) any construction contracts;
(p) intentionally omitted;
(q) any agreement 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 guaranties,any agreements which provide for source code escrow arrangements;
(xiir) 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 marketing (including any pilot program), 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, contract officer, employee, or commitment 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
(t) to the extent not reported on the Company Balance Sheet, any other agreement that involves payment by the Company or a Subsidiary of $25,000 or more or which is not cancelable without penalty within thirty (30) days.
(b) The . Neither 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 be set forth on SCHEDULE 2.13(a) any Company Schedule relating to the representations and warranties set forth in Section 2.14 or SCHEDULE 2.12(b) on Schedule 2.16 (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, knowledge thereunder by any party obligated to the Company or a Subsidiary, as the case may be, pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE Section 2.13(a) or as specifically set forth in of the Company Financials Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (including the notes thereto)each, a “Company Material Contract” and collectively, the “Company does not have, is not a party to and is not bound by: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 each Company Contract constituting a material bonus, deferred compensation, severance, change in control, retention, incentive compensation, pension, profit profit-sharing or retirement plans;
(ii) each Company Contract pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services other employee benefit plans than any employment agreement, employment contract, offer letter, or arrangements,similar arrangement that is terminable “at-will” without penalty, Liability or severance (statutory, contractual, or otherwise), or that can be terminated without penalty, Liability or premium upon notice of thirty (30) days or less;
(iii) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iv) each Company Contract containing: (A) any employment covenant limiting the freedom of the Company or consulting agreementthe Surviving Corporation to engage in any line of business or compete with any Person, contract (B) any most-favored pricing arrangement, (C) any exclusivity provision, or commitment (excluding "at will" employee relationshipsD) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,non-solicitation provision;
(v) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $50,000 not cancelable without penalty;
(vi) each Company Contract relating to any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights right plan or stock purchase planplan with any employee or other individual consultant, independent contractor or director, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any lease of personal property having a value individually in excess of $25,000,Contemplated Transactions;
(vii) any agreement of indemnification or guaranty,
(viii) any agreement, contract or commitment containing any covenant limiting the freedom of the each Company to engage in any line of business or to compete with any person,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(x) any agreement, contract or commitment Contract relating to the disposition or acquisition of material assets or any ownership interest in any business enterprise outside the ordinary course of the Company's business,Entity;
(xiviii) each Company Contract relating to any mortgages, indentures, loans loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit or creating any material Encumbrances with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company;
(ix) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $50,000 relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions);(B) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company; or (C) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(x) each Company Contract with any Person, including guaranties,any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(xi) each Company Real Estate Lease;
(xii) each Company Contract with any Governmental Body;
(xiii) each Contract granting the Company a license to any Intellectual Property Right owned by any third party that involves payments by the Company in excess of $50,000 per annum, excluding any non-disclosure agreements, commercially available software-as-a-service offerings, off-the-shelf software licenses or generally available patent license agreements entered into in the Ordinary Course of Business, provided that in connection with each of such excluded categories the Company can obtain a reasonable replacement without material delay, incremental expense or incremental cost (each a “Company In-bound License”);
(xiv) each Contract whereby the Company grants to a third party a license or option to obtain a licenses to, or otherwise provides any right (whether or not currently exercisable) or interest in, any Company IP or Intellectual Property Right licensed to the Company under a Company In-bound License, excluding licenses granted to customers of the Company in the Ordinary Course of Business or that do not involve payments to the Company in excess of $50,000 in the aggregate;
(xv) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xvi) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company, and which involves payment or receipt by the Company after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 in the aggregate, or
(xvii) any other Company Contract that involves $25,000 is material to the business or more or is not cancelable without penalty within thirty (30) daysoperations of the Company as currently conducted.
(b) The Company has delivered or made available to MTS accurate and complete copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. The Company has not, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementCompany Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, contract or commitment required would permit any other party to seek damages which would reasonably be expected to be set forth on SCHEDULE 2.13(a) material to the Company or SCHEDULE 2.12(b) (any such agreementits business. As to the Company, contract or commitmentas of the date of this Agreement, a "CONTRACT"). Each each Company Material Contract is valid, binding, enforceable and in full force and effect and is not effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material default thereunder, of which the Company has knowledge, by any party obligated amount paid or payable to the Company pursuant thereto. Following the Closing Date, the under any Company will be permitted to exercise all of the Company's rights under the Contracts without the payment Material Contract or any other material term or provision of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredMaterial Contract.
Appears in 1 contract
Sources: Merger Agreement (Mer Telemanagement Solutions LTD)
Agreements, Contracts and Commitments. (a) Schedule 2.19 sets forth a true, accurate and complete list of:
(i) All Contracts to which the Company is a party or by which any its assets or properties is bound (i) that involves consideration or other expenditure in excess of $10,000.00 during a fiscal year, (ii) that involves performance by the Company over a period of more than six (6) months, (iii) that cannot, by its terms, be terminated by the Company without penalty or payment on thirty (30) days or less notice, or (iv) that is otherwise material to the ongoing business or ongoing operations of the Company (the “Material Contracts”);
(ii) All Contracts (which schedule shall reflect which such Submetering Contracts are written or oral) to which the Company is a party or by which any of its assets or properties is bound that obligate the Company to furnish meter reading, billing (including allocation billing and ratio billing) or collection services in the Business (the “Submetering Contracts”);
(iii) All Contracts to which the Company is a party or by which any its assets or properties is bound that obligate the Company to furnish installation, construction or maintenance services in the Business (the “Construction Contracts”); and
(iv) All Contracts to which the Company (or the Seller, in the case of Leased Vehicles and Leased Computer Equipment that are used by the Company) is a party or by which any its assets or properties is bound that are real or personal property leases (the “Material Leases”);
(v) All Contracts to which the Company is a party or by which any its assets or properties is bound that are guarantees or under which the Company indemnifies or is contingently liable for the payment or performance of any liability or obligation of any other Person (the “Guarantees”);
(vi) All Contracts between the Company, on the one hand, and any of its Affiliates or any of the shareholders, officers, directors, employees, consultants, sales representatives, agents (or any of their respective Affiliates), on the other hand (the “Affiliate Agreements”);
(vii) All Contracts to which the Company is a party or by which any its assets or properties is bound that are licenses of any of the Included Intellectual Property (the “Material IP Licenses”); and
(viii) All the Internet domain name registrations used by the Company in conducting its business, together with the name of the applicable registrar of Internet domain names (the “Domain Name Contracts”). The Material Contracts, Submetering Contracts, Construction Contracts, Material Leases, Guarantees, Affiliate Agreements, Material IP Licenses and Domain Name Contracts are collectively referred to in this Agreement as the “Company Contracts”.
(b) True, accurate and complete copies of the written Company Contracts have been made available to Purchaser. There are no amendments or modifications to any of the Company Contracts that have not been made available to Purchaser.
(c) To the Knowledge of Seller and the Company, each of the Company Contracts constitutes the valid and legally binding obligation of the parties thereto. Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto)Schedule 2.19, the Company does not haveis in full compliance with all material terms and requirements of the Company Contracts. To the Knowledge of the Seller and the Company, none of the Company Contracts materially violates any applicable Laws. To the Knowledge of Seller and the Company, each other Person that has or had any obligation or liability under any of the Company Contracts is in full compliance with all material terms and requirements thereof.
(d) Neither Seller nor the Company has given or received from any other Person any written notice regarding any actual, alleged, possible or potential violation or breach of, or default under, any of the Company Contracts. There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any reduction of material amounts paid or payable to the Company under any of the Company Contracts. Neither Seller nor the Company has received from any Person any written notice regarding the termination or amendment of the term of any of the Company Contracts.
(e) The Company is not a party to and is not or bound by:by any Contract or Organizational Document which purports to restrict by virtue of a noncompetition, territorial exclusivity or other provision covering such subject matter, the scope of the business or operations of the Company or any of its Affiliates geographically or otherwise.
(if) any collective bargaining agreements,
(ii) any agreements or arrangements There is no power of attorney that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) is currently effective and outstanding with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services respect to the Company,
(v) any agreement business, operations or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any lease of personal property having a value individually in excess of $25,000,
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(x) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course properties of the Company's business,
(xi) 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,
(xii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth disclosed in Section 2.13 of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not have, have and is not a party to and is not bound byto:
(ia) any collective bargaining agreements,
(iib) any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations,
(iiic) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,
(ivd) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services organization, not terminable by the Company on thirty days notice without liability, except to the extent general principles of wrongful termination law may limit the Company's ability to terminate employees at will,
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vif) any fidelity or surety bond or completion bond,
(g) any lease of personal property having a value individually in excess of $25,0005,000,
(viih) any agreement of indemnification or guarantyguaranty not entered into in the ordinary course of business,
(viiii) 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,
(ixj) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,0005,000,
(xk) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise,
(xil) 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 guarantiesguaranties referred to in clause (h) hereof,
(xiim) any purchase order or contract for the purchase of raw materials or acquisition of assets involving $5,000 or more,
(n) any construction contracts,
(o) any distribution, joint marketing or development agreement,
(p) any other agreement, contract or commitment that which involves $25,000 50,000 or more or and is not cancelable without penalty within thirty (30) days., or
(bq) any agreement which is otherwise material to the Company's business. The Company has not breached, violated or defaulted under, or received notice in writing any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any material agreement, contract or commitment required to be which it is bound (including those set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (in any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all of the lists separately certified by the Company's rights under ) in such manner as would permit any other party to cancel or terminate the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredsame.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sagent Technology Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the The Company Financials (including the notes thereto), the Company does not have, is and its Subsidiaries are not a party to to, nor are the Company and is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Companyorganization,
(vd) any agreement or 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vie) any fidelity or surety bond or completion bond,
(f) any lease of personal property having a value individually in excess of $25,00050,000,
(viig) any agreement agreement, contract or commitment of indemnification indemnification, guaranty, support, assumption or guarantyendorsement 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,
(viiih) 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,
(ixi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00050,000 per year,
(xj) 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,
(xik) 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 guarantiescredit or any leasing transaction of the type required to be capitalized in accordance with GAAP,
(xiil) any purchase order or contract for the purchase of raw materials to pay $50,000 or more, other than purchase orders for TSOPs, flex-frames, solder, solvents, printed wiring boards, and other items purchased in the ordinary course of business consistent with past practice,
(m) any real property development or construction agreements, contracts or commitments,
(n) any distribution, joint marketing or development agreement, contract or commitment,
(o) 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 an obligation to pay, $25,000 50,000 per year or more or and is not cancelable without penalty within thirty (30) days., or
(bq) 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 required to be set forth on SCHEDULE 2.13(a) with any person with whom the Company or SCHEDULE its Subsidiaries does not deal at arm’s length within the meaning of the Code other than agreements, contracts or commitments provided for in Sections 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredthrough 2.12(d) above.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(aSection 2.15(a) or as specifically set forth in of the Disclosure Schedule, neither the Company Financials (including the notes thereto), nor any of the Company does not have, Subsidiaries is not a party to and to, or is 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 (excluding "at will" employee relationships) 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 any consulting acceleration of obligations (including vesting of options or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,otherwise) involving future payments in excess of $[*];
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planplan (A) relating to the sale, issuance, grant, exercise, award, purchase or redemption of any shares of 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually in excess of $25,000,[*] individually or $[*] in the aggregate;
(viiv) any agreement of indemnification or guaranty,;
(viii) 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,
(ixvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,[*] individually or $[*] in the aggregate;
(xvii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xiviii) 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; CONFIDENTIAL TREATMENT REQUESTED
(ix) any purchase order or contract for the purchase of materials involving payments in excess of $[*] individually or $[*] in the aggregate;
(x) any partnership, including guaranties,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 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;
(xv) any Contract 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, 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 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; CONFIDENTIAL TREATMENT REQUESTED
(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
(xxiii) any other Contract, contract if a breach of such Contract or commitment that involves $25,000 the termination of such Contract would reasonably be expected to have or more or is not cancelable without penalty within thirty (30) daysresult in a Material Adverse Effect.
(b) True 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, the “Material Contracts”) have been made available to Acquiror. Each Material Contract to which the Company or any of the Company 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 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 has 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 required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any no party obligated to the Company or any Company Subsidiary pursuant theretoto 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. Following the Closing DateThere 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 will be permitted or any Company Subsidiary or (to exercise all the knowledge of the Company's ) any other party under any Material Contract, (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, (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 [*] Confidential treatment requested. 55 CONFIDENTIAL TREATMENT REQUESTED 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 may be discontinued by the Company at will (upon delivery of 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 termination by the Company 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, there has not been any Material Adverse Effect to any clinical trial conducted by the Company or 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 Disclosure Schedule sets forth all Company Contracts that relate to the Company’s license and development rights to the Product (the “Product 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 the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which Product Contract; the Company would otherwise be required has made available accurate and complete copies of each written Product Contract to pay had Acquiror; and neither the execution, delivery or performance of this Agreement nor the transactions contemplated by this Agreement not occurredhereunder 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) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto), the The Company does not have, is not a party to and nor is not 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 obligations,are 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 (excluding "at will" employee relationships) agreement with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other organization provides services to the Company,;
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, or under which payments are required to be made by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vif) any fidelity or surety bond or completion bond;
(g) any lease of personal property having a value individually in excess of $25,000,10,000;
(viih) any agreement of indemnification or guaranty,, except for indemnification or guarantees provided in the ordinary course of business in connection with the sale of the Company’s products as set forth on Schedule 2.15;
(viiii) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company to engage in any line of business or to compete with any person,person or granting any exclusive distribution rights;
(ixj) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000,;
(xk) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company after the date of this Agreement of a material amount of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xil) 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,guaranties referred to in clause (h) hereof;
(xiim) any purchase order or contract involving the 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, contract or commitment agreement that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.16(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 be set forth on SCHEDULE 2.13(aSchedule 2.16(a), Schedule 2.14(m) or SCHEDULE 2.12(bSchedule 2.14(n) (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 2.16(b), is not subject to any material default thereunder, thereunder of which the Company has knowledge, knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 2.16 of the Disclosure Schedule (specifying the appropriate paragraph):
(a) or as specifically set forth in Neither the Company Financials (including the notes thereto), the Company does not have, nor any of its Subsidiaries is not a party to and to, nor is not 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 (excluding "at will" employee relationships) 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 under which any with a firm or other organization provides services to 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, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually in excess of $25,000,20,000 individually or $50,000 in the aggregate;
(viiv) any agreement of indemnification or guaranty,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)), and (b) warranties implied by law;
(viii) 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,
(ixvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,20,000 individually or $50,000 in the aggregate;
(xvii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xiviii) 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 for the purchase of materials involving in excess of $20,000 individually or $50,000 in the aggregate;
(x) any construction contracts;
(xi) any dealer, distribution, joint marketing, 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 guaranties,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
(xiv) any other agreement, contract or commitment that involves $25,000 20,000 individually or $50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) 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 binding agreement of the Company or 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 or the applicable Subsidiary and, to the Knowledge of the Company, any other party thereto. The Company has and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that it has they have breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Material Contract, contract or commitment required nor to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material 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. Following True and complete copies of each Material Contract disclosed in the Closing DateDisclosure 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 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 date hereof, and, without giving effect to the Merger, the Company will be permitted to exercise fulfill, when due, all of the Company's rights its obligations under the Material Contracts without that remain to be performed after the payment date hereof.
(d) All outstanding indebtedness of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise or its Subsidiaries may be required to pay had the transactions contemplated by this Agreement not occurredprepaid without penalty.
Appears in 1 contract
Sources: Merger Agreement (Harmonic Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) the Company Schedule, or as specifically set forth included in the Company Financials (including Current Balance Sheet, or footnotes thereto, provided to the notes thereto)Parent, the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually in excess of USD $25,000,25,000 individually or USD $50,000 in the aggregate;
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ixv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of USD $25,000,25,000 individually or USD $50,000 in the aggregate;
(xvi) 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 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 third party, other than customary non-disclosure and confidentiality obligations contained in non-disclosure agreements, license agreements or customer agreements entered into in the ordinary course of business, and other than customary license restrictions that may be contained in Contracts entered into in the ordinary course of business and which would not have a Material Adverse Effect on the Company's business as conducted.
(x) any power of attorney or other similar agreement or grant of agency;
(xi) any mortgages, indentures, loans contract entered into other than in the ordinary course of business that contains or credit agreements, security agreements or other agreements or instruments relating provides for an express undertaking by the Company to the borrowing of money or extension of credit, including guaranties,be responsible for consequential damages;
(xii) any oral or written warranty, guaranty, and or other agreementsimilar undertaking with respect to product or contractual performance sold or extended by the Company other than in the ordinary course of business; or
(xiii) any amendment, contract supplement, and modification (whether oral or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30written) daysin respect of any of the foregoing.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any All of the terms Contracts set forth or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(athe Company Schedule ("Contracts") are valid, binding and enforceable 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 SCHEDULE 2.12(b) (any such agreementother equitable remedies, contract or commitmentand limitations of public policy, a "CONTRACT"). Each Contract is and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby. The Company has performed 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 the Company Schedule; no event has occurred which, with the passage of time or 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 in all material respects all such obligations required to be performed by the Company under any Contract set forth or required to be set forth on the Company Schedule; no partially-filled or unfilled material customer purchase order or sales order is subject to cancellation or any other material modification by the other party thereto or is subject to any material default thereunderpenalty, right of set-off or other charge by the other party thereto for late performance or delivery; and the Company does not have any knowledge of any cancellation or anticipated cancellation or any breach by the other parties to any Contract set forth or required to be set forth on the Company Schedule. The Company is not a party to any Contract the performance of which could reasonably be expected to have a Company Material Adverse Effect.
(c) Parent has been given access to a true and correct copy of each of the written Contracts that are set forth on the Company has knowledgeSchedule, by any party obligated to the Company pursuant together with all amendments, waivers or other changes thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lynuxworks Inc)
Agreements, Contracts and Commitments. (aA) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth disclosed in the Company Financials (including the notes thereto)Schedule 2.12, the Company Trilogy does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services organization, not terminable by Trilogy on thirty days notice without liability, except to the Company,extent general principles of wrongful termination law may limit Trilogy's ability to terminate employees at will;
(v5) any agreement Agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi6) any Any fidelity or surety bond or completion bond;
(7) Any lease of personal property having a value individually in excess of $25,000,2,000;
(vii) any 8) Any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business;
(viii9) any Any agreement, contract or commitment containing any covenant limiting the freedom of the Company Trilogy to engage in any line of business or to compete with any person,;
(ix10) any Any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,10,000 in any single instance or $20,000 in the aggregate;
(x11) any Any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xi12) any Any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties,guaranties referred to in Schedule 2.12(A)(12) hereof;
(xii13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any single instance or $20,000 or more in the aggregate;
(14) Any construction contracts;
(15) Any distribution, joint marketing or development agreement;
(16) Any other agreement, contract or commitment that which involves $25,000 2,000 or more in any single instance or more than $45,000 in the aggregate and is not cancelable without penalty within thirty (30) daysdays other than standard end-user licenses of Trilogy's products and services in the ordinary course of business consistent with past practice, or
(17) Any agreement which is otherwise material to Trilogy's business.
(bB) The Company (1) Trilogy 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 required to be which it is bound (including those set forth on SCHEDULE 2.13(ain any of Trilogy Schedules) in such manner as would permit any other party to cancel or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which terminate the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredsame.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) The following agreements, contracts or as specifically set forth in the Company Financials (including the notes thereto), the Company does not have, commitments with respect to which EpiCept or one of its subsidiaries is not a party or is bound are referred to and is not bound byherein as the “EpiCept 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,
(iva) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an any officer or director or higher level employee or individual consultant or salesperson member of EpiCept’s Board of Directors, other than those that are terminable by EpiCept or any consulting of its subsidiaries on no more than thirty (30) days’ notice without liability or sales agreement, contract or commitment under which any firm or other organization provides services financial obligation to the Company,EpiCept;
(vb) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi) any lease of personal property having a value individually in excess of $25,000,
(viic) any agreement of indemnification or guaranty,;
(viiid) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company EpiCept or any of its subsidiaries to engage in any line of business or to compete with any person,person or granting any exclusive distribution or marketing rights;
(ixe) any agreement, contract or commitment relating to capital expenditures and involving future payments currently in excess of $25,000,
(x) any agreement, contract or commitment force relating to the disposition or acquisition by EpiCept or any of its subsidiaries after the date of this Agreement of assets or any interest in any business enterprise outside excess of $150,000 not in the ordinary course of the Company's business,business or pursuant to which EpiCept has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than EpiCept’s subsidiaries;
(xif) any dealer, distributor, joint marketing, alliance, development or other agreement currently in force under which EpiCept or any of its subsidiaries have continuing material obligations to jointly market any product, technology, compound or service, or any material agreement pursuant to which EpiCept 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 EpiCept or any of its subsidiaries;
(g) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any EpiCept product, technology, compound or service or any material agreement, contract or commitment currently in force to sell or distribute any EpiCept product, compound or service except agreements with distributors or sales representatives 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 Maxim;
(h) 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 trade payables arising, including guaranties,and advances to employees made, in the ordinary course of business consistent with past practice);
(xiii) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or
(j) any other agreement, contract or commitment that involves (i) in connection with or pursuant to which EpiCept and its subsidiaries will spend or receive (or are expected to spend or receive), in the aggregate, more than $25,000 150,000 during the current fiscal year or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted underduring the next fiscal year, or received notice (ii) that it has breached, violated or defaulted under, any is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"SEC rules). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the The Company Financials (including the notes thereto), the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services organization, other than 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 Company,other party thereto upon termination of such relationship (whether in the form of severance or benefit obligation or otherwise);
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having that involves a value individually remaining obligation in excess of $25,000,10,000;
(vii) any agreement of indemnification or guaranty,
(viiiv) 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,
(ixvi) any agreement, contract or commitment relating to capital expenditures and involving future payments that involves a remaining obligation in excess of $25,000,10,000;
(xvii) any agreement, contract or commitment relating to the leasing, licensing, disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xiviii) 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;
(ix) any purchase order or contract for the purchase of materials that involves a remaining obligation in excess of $20,000;
(x) any construction contracts;
(xi) any dealer, including guaranties,distribution, joint 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
(xiii) any other material agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) dayscommitment.
(b) The Company is in compliance in all material respects with and 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 required listed in Section 3.15(a) of the Company Disclosure Schedule to be set forth on SCHEDULE 2.13(a) which the Company is a party or SCHEDULE 2.12(b) by which it is bound (any such agreement, contract or commitmenteach, a "CONTRACT"“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 material default thereunder, of which the Company has knowledge, thereunder by any party obligated to the Company pursuant thereto. The Company has obtained or will obtain prior to the Closing all necessary consents, waivers and approvals of parties to any Company Contract as are required thereunder in connection with the Acquisition for such Company Contracts to remain in effect without modification after the date hereof. The Company Contracts requiring such consents, waivers and approvals are described in Section 3.15(b) of the Company Disclosure Schedule. Following the Closing Datedate hereof and subject to the fulfillment of all obligations of the Company thereunder, the Company will be permitted to exercise all of the Company's ’s rights under the Company Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Medical Systems Holdings Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 2.14 of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not havehave continuing obligations under, is not a party to and to, nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated 23 on the basis of any of the transactions contemplated by this Agreement,, except as provided herein;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value annual lease payments individually in excess of $25,000,US$10,000;
(viiviii) any agreement of indemnification or guaranty,guaranty other than in the ordinary course of business;
(viiiix) 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,;
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,US$10,000 in the aggregate (other than agreements, contracts or commitments made in the ordinary course of the Company's business consistent with past practices and not involving future payments in excess of US$50,000 in the aggregate);
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xixii) 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,any guarantees;
(xiixiii) any purchase order or contract for the purchase of raw materials involving US$10,000 or more;
(xiv) any construction contracts;
(xv) any distribution, joint marketing or development agreement;
(xvi) any agreement, contract or commitment with any customer which, during the last two fiscal years of the Company, accounted for, or 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
(xvii) any other agreement, contract or commitment that involves $25,000 US$10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(ain Section 2.14 of the Disclosure Schedule, or (ii) any other agreement, contract or SCHEDULE 2.12(b) commitment to which it is a party or by which it is bound (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, thereunder of which the Company has knowledge, or any of the Selling Shareholders is aware by any party obligated to the Company pursuant thereto. Following The Company has obtained, or will obtain prior to the Closing DateClosing, the Company will be permitted all necessary consents, waivers and approvals of parties 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 Contract as are required to pay had in connection with the transactions contemplated hereby and by this Agreement not occurredeach of the Related Agreements, or as are required or advisable in order to remain in effect without modification after the consummation of the transactions contemplated hereby and thereby.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in As of the Company Financials (including the notes thereto)date hereof, the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal or real property having a value individually in excess of $25,00015,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) 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,
(ixx) any agreement, contract or commitment relating to capital expenditures and or involving future payments in excess of $25,000,
(xxi) 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,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use of distribution of the Company's products, technologies or services;
(xvi) any distribution, joint marketing or development agreement,
(xvii) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,
(xviii) any agreement pursuant to which the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property, or
(xix) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(aPart 2.12(a) of the Company Disclosure Letter or SCHEDULE 2.12(bPart 2.11(g) of the Company Disclosure Letter (any such agreement, contract or commitment, a "CONTRACTContract"). Each Contract is in full force and effect and is not subject to any material default thereunder, thereunder of which the Company has knowledge, Knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Goto Com Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Paragraph 4.13 of the Company Financials (including the notes thereto)Disclosure Letter, the Company does not havehave continuing obligations under, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,, except as provided herein;
(vif) any fidelity or surety bond;
(g) any lease of personal property having a value annual lease payments individually in excess of $25,000,;
(viih) any agreement of indemnification or guaranty,guaranty other than in the ordinary course of business;
(viiii) 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,;
(ixj) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,;
(xk) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xil) 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,guaranties referred to in clause (viii) hereof.
(xiim) any other purchase order or contract for the purchase of raw materials involving $25,000 or more;
(n) any construction contracts;
(o) any agreement, contract or commitment that involves $25,000 or more with any party which, during the last two fiscal years of the Company, accounted for, or is not cancelable without penalty within thirty (30) days.expected to account during the Company's current fiscal year, for more than 5% of the Company's revenue or trade payables;
(bp) 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 any distribution right by the Company 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 required to be set forth on SCHEDULE 2.13(ain Paragraph 4.13 of the Disclosure Letter, or (ii) any other material agreement, contract or SCHEDULE 2.12(b) commitment to which it is a party or by which it is bound (any such agreement, contract or commitment, a "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 material default thereunder, thereunder of which the Company has knowledge, is aware by any party obligated to the Company pursuant thereto. Following The Company has obtained, or will obtain prior to the Closing Date, the Company will be permitted all necessary consents, waivers and approvals of parties 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 Contract as are required to pay had in connection with the transactions contemplated by this Agreement, or as are required or advisable in order to remain in effect without modification after the 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 not occurredis disclosed in Paragraph 4.13 of the Disclosure Letter. Neither the execution of this Agreement nor consummation of the transactions contemplated hereby will cause any default or breach under any Contract, including without limitation any key man clause in any Contract, or the acceleration of any payment obligation of the 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 on SCHEDULE 2.13(ain Section 2.12(a) or as specifically set forth in of the Company Financials (including the notes thereto)Schedule, the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,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 on the basis of any of the transactions contemplated by this Agreement,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,;
(viiviii) any agreement of indemnification indemnification, guaranty or guaranty,suretyship;
(viiiix) 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,;
(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 assets, properties or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xixii) 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,guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiixiii) 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) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in 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 required to which it is a party or by which it or its assets or properties are or may be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) bound (any such agreement, contract or commitment, a "CONTRACT"“Contract”). Each Contract is in full force and effect and is not subject to any material default thereunder, thereunder of which the Company has knowledge, knowledge by any party obligated to the Company pursuant thereto. Following The Company has obtained, or will obtain prior to the Closing DateEffective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Company will be permitted to exercise all of Merger and 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 and by this Agreement not occurredthe 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) Except as set forth on SCHEDULE 2.13(a) Predix and its subsidiaries are not parties to or as specifically set forth in the Company Financials (including the notes thereto), the Company does not have, is not a party to and is not bound by:
(ia) any collective bargaining agreements,
(iiexcept as described in Section 2.12(a) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) of the Predix 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 2.12(a) of the Predix Disclosure Schedule, any employment or consulting agreement, contract or commitment with any officer or director level employee, not terminable by Predix or its subsidiaries on thirty (excluding "30) days notice without liability, except to the extent general principles of wrongful termination law may limit Predix’s or its subsidiaries’ ability to terminate employees at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,; Table of Contents
(vc) except as described in Section 2.12(a) of the Predix Disclosure Schedule, any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi) any lease of personal property having a value individually in excess of $25,000,
(viid) any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business other than indemnification agreements between Predix or its subsidiaries and any of their officers or directors;
(viiie) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Predix or its subsidiaries to engage in any line of business or to compete with any person,;
(ixf) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,25,000 and not cancelable without penalty;
(xg) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xih) 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,credit in excess of $25,000;
(xiii) any joint marketing or development agreement;
(j) any distribution agreement (identifying any that contain exclusivity provisions); or
(k) any other agreement, contract or commitment that involves (excluding real and personal property leases) which involve payment by Predix or its subsidiaries under any such agreement, contract or commitment of $25,000 or more in the aggregate. Predix and its subsidiaries have not, nor to Predix’s or is not cancelable without penalty within thirty its subsidiaries’ knowledge has any other party to a Predix Contract (30) days.
(b) The Company has not as defined below), 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 required commitments to be set forth on SCHEDULE 2.13(awhich Predix or its subsidiaries are a party or by which they are bound of the type described in clauses (a) or SCHEDULE 2.12(bthrough (k) above (any such agreement, contract or commitment, a "CONTRACT")“Predix Contract”) in such manner as would permit any other party to cancel or terminate any such Predix Contract, or would permit any other party to seek damages which would reasonably be expected to have a Material Adverse Effect on Predix. Each As to Predix and its subsidiaries, each Predix Contract is valid, binding, enforceable and in full force and effect effect, except as enforceability may be limited by bankruptcy and is not subject to any material default thereunder, other similar laws and general principles of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredequity.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Sections 2.12(g) or as specifically set forth in and 2.13 of the Company Financials Disclosure Schedule (including the notes theretotrue, correct and complete copies of all documents described therein having been previously delivered to Purchaser), the Company does not have, is not a party to and is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to (other than consulting agreements in the Company,ordinary course of business under which the total payments are less than Five Thousand Dollars ($5,000) per month and Sixty Thousand Dollars ($60,000) overall);
(vb) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vic) any fidelity or surety bond or completion bond;
(d) any lease of personal property having a value individually in excess of Five Thousand Dollars ($25,000,5,000) individually or Ten Thousand Dollars ($10,000) in the aggregate;
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ixe) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of Ten Thousand Dollars ($25,000,10,000) individually or Thirty Thousand Dollars ($30,000) in the aggregate;
(xf) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xig) any mortgages, indentures, industrial revenue or other bonds, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties,;
(xiih) any purchase order or contract for the purchase of materials involving in excess of Twenty Five Thousand Dollars ($25,000) individually or One Hundred Thousand Dollars ($100,000) in the aggregate;
(i) any construction contracts;
(j) any dealer, distribution, joint marketing or development agreement;
(k) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent vendor or other agreement for sale, use or distribution of the Company’s products, technology or services;
(l) any other agreement, contract or commitment that involves in excess of Twenty Five Thousand Dollars ($25,000 25,000) individually or more or One Hundred Thousand Dollars ($100,000) in the aggregate and is not cancelable without penalty within thirty (30) days.; or
(bm) The Company any agreement under which Company: (i) is prevented from competing in any market or with any third party or otherwise prevented from conducting any business in any manner; (ii) granted any exclusive rights; or (iii) has covenanted not breached, violated to enforce any right 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 SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredthird party.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as for the Customer Agreements set forth on SCHEDULE 2.13(a) or as specifically 3.10 and other agreements set forth in on SCHEDULE 3.15 (true and correct copies of which have been made available to the Company Financials (including the notes theretoBuyer), the Company does not have, is not a party to and it is 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Transactions or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Transactions;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually with fixed annual rental payments in excess of $25,000,10,000;
(vii) any agreement of indemnification or guaranty,
(viiiv) 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,;
(ixvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,10,000 either individually or in the aggregate;
(xvii) 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,;
(viii) any mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money, the extension of credit or placing of Liens on any assets of the Company;
(ix) any guaranty of any obligation for borrowed money or otherwise;
(x) any purchase order or contract for the purchase of materials involving in excess of $10,000 either individually or in the aggregate;
(xi) any mortgagesdealer, indenturesdistribution, loans joint marketing or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties,development agreement;
(xii) any sales representative, original equipment manufacturer, value added, remarketing or other agreement for distribution of the Company's products or services;
(xiii) any collective bargaining agreement or contract with any labor union;
(xiv) any medical insurance or similar plan; or
(xv) any other agreement, contract contract, commitment or commitment that involves grant pursuant to which the obligations of any party thereto is in excess of $25,000 or more or is not cancelable without penalty within thirty (30) days10,000.
(b) The To the best knowledge of each Shareholder and the Seller, 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 required to be set forth on SCHEDULE 2.13(a) which the Company is a party or SCHEDULE 2.12(b) by which it is bound (any such agreement, contract or commitmentcollectively, a "CONTRACTContract"), 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 material default thereunder, of which the Company has knowledge, thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder for such Contracts to remain in effect without modification or termination after the Closing. Following the Closing Date, the Company will be permitted to exercise all of the Company's its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement Transactions not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Accupoll Holding Corp)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 2.14(a) or as specifically set forth in of the Company Financials (including the notes thereto)Disclosure Letter, the Company Skillscape does not havehave any continuing obligations under, is not a party to and or is 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 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(v) any agreement or 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,, except as provided herein;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease or license of real or personal property having a value annual lease payments individually in excess of $25,000,US$3,000;
(viiviii) any agreement of indemnification or guaranty,;
(viiiix) 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,;
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,US$5,000;
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the CompanySkillscape's business,;
(xixii) 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,guaranties referred to in clause (viii) hereof;
(xiixiii) any purchase order or contract for the purchase of raw materials, other than purchase orders made in the ordinary course of business and involving not more than US$5,000;
(xiv) any construction contracts;
(xv) any distribution, joint marketing or development agreement;
(xvi) any agreement, contract or commitment with any customer which accounted for, or is expected to account during Skillscape's current fiscal year, for more than 5% of Skillscape's revenue or trade payables; or
(xvii) any other agreement, contract or commitment that involves $25,000 5,000 or more or is that cannot cancelable be canceled without penalty within thirty (30) days.
(b) The Company Except as noted in Section 2.14(b) of the Disclosure Letter, 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 on SCHEDULE 2.13(ain Section 2.14(a) of the Disclosure Letter, or SCHEDULE 2.12(b(ii) any other agreement, contract or commitment to which it is a party or by which it is bound (any such agreement, contract or commitmentcommitment referenced in the preceding clauses (i) and (ii), 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 and, except as otherwise disclosed in Section 2.14(b) of the Disclosure Letter, is not subject to any material default thereunder, thereunder of which the Company has knowledge, Management Shareholders are aware by any party obligated to the Company Skillscape pursuant thereto. Following Each of the Closing 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 Exchange Date, the Company will be permitted all necessary consents, waivers and approvals of parties to exercise all any Contract as are required thereunder in connection with consummation of the Company's rights under Share Exchange or to remain in effect without modification after the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredShare Exchange.
Appears in 1 contract
Sources: Share Purchase Agreement (Smartforce Public LTD Co)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the The Company Financials (including the notes thereto), the Company does not have, is not a party to and to, nor is not it bound by:by any of the following (each, a “Material Contract”):
(i) except for employee invention assignment agreements entered into by the Company with employees in the ordinary course of business and substantially in the form of the Company’s standard proprietary information and inventions assignment agreement (other than those in which the employee has excepted from assignment, or retained ownership of, any collective bargaining agreements,specific items of proprietary information, inventions or similar rights), and except for employee offer letters for “at-will” employment substantially in the form of the Company’s standard offer letter and consulting agreements substantially in the form of the Company standard form of consulting agreement, any employment, contractor or consulting Contract with an employee or individual consultant, contractor 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or planplan with respect to equity incentives, equity compensation or employee benefits, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,, except for any stock option awards for which the vesting as of and through the Effective Time is as set forth in Section 2.2(b) of the Disclosure Letter;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property or equipment having a value individually in excess of $25,000,50,000 individually or $150,000 in the aggregate;
(viiv) any agreement of indemnification or guaranty,, but excluding agreements of indemnification or guaranty with respect to the infringement of the Intellectual Property Rights of third parties and other customary indemnities that are contained in the Company’s written agreements with its customers, consultants, independent contractors and licensors that have been entered into in the ordinary course of business, consistent with past practices;
(viiivi) 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,
(ix) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or $150,000 in the aggregate;
(xvii) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,, consistent with past practices;
(xiviii) 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 obligating the Company to purchase materials or services at a cost in excess of $50,000 individually or $150,000 in the aggregate;
(x) any Contract containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition (including guarantiesnon-competition covenants the prohibit or limit the sale, license or other distribution of any of the Company’s technology or products, or the provision of services to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the market), “most favored nations,” non-solicit, no hire, any similar restrictions on the operation or scope of the Company’s businesses or operations, or similar terms;
(xi) any agreement expressly providing a customer of the Company with refund rights;
(xii) any Contract for the use, distribution, integration or redistribution of the products, technology or services of the Company, other agreementthan by the consumer end user, contract including dealer, distribution, marketing, development, sales representative, original equipment manufacturer, manufacturing, supply, value added reseller, remarketer, reseller, vendor, service provider and joint venture agreements;
(xiii) any Contract pursuant to which the Company receives revenue or commitment other payments in excess of $50,000;
(xiv) any Contracts to which the Company is a party with respect to the license (including a covenant not to assert any Intellectual Property Right), assignment or use of any Technology or Intellectual Property Rights, including without limitation any in-bound licenses, out-bound licenses and cross-licenses, but excluding, (A) with respect to in-bound licenses, Contracts for Generally Available Software, (B) with respect to out-bound licenses, End User Licenses and licenses with respect to the products, technology or services of the Company that are listed in Section 2.15(a)(xii) of the Disclosure Letter, (C) any NDA, (D) any employment, consulting or independent contractor Contract not required to be listed in Section 2.15(a)(i) of the Disclosure Letter or (E) any Contract required to be listed in Section 2.15(a)(i) of the Disclosure Letter; or
(xv) any other Contract that involves $25,000 50,000 or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) The Company is in material 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 agreementMaterial Contract where such breach, contract violation or commitment required default would be material to be set forth on SCHEDULE 2.13(a) the Company, nor does the Company have Knowledge of any event that would constitute such a breach, violation or SCHEDULE 2.12(b) (any such agreementdefault with the lapse of time, contract giving of notice 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 that would be material default thereunderto the Company, 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 default thereunder. Following No Material Contract will terminate, or may be terminated by either party, solely by the Closing Date, passage of time or at the Company will be permitted to exercise all election of either party within 120 days after the Closing. To the Knowledge of the Company's rights under the Contracts without the payment , no party to a Material Contract has any intention of any additional amounts or consideration other than ongoing fees, royalties or payments which terminating such Material Contract with the Company would otherwise be required to pay had or reducing the transactions contemplated by this Agreement not occurredvolume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in As of the Company Financials (including the notes thereto)date hereof, the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides material services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00015,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) 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,
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside of the ordinary course of the Company's business,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any construction contracts,
(xiv) any distribution, joint marketing or development agreement,
(xv) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,
(xvi) any agreement, arrangement, joint venture, partnership, license or other relationship with any Governmental Entity whereby the United States Government or any other Governmental Entity has an ownership interest in or otherwise has the right to exploit in any manner any Company Intellectual Property or any other assets of the Company, or
(xvii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except for such alleged breaches, violations and defaults and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Section 2.12(b) of the --------------- Disclosure Letter, 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 required to be set forth on SCHEDULE 2.13(aSection 2.12(a) of the Company Disclosure Letter or SCHEDULE 2.12(b--------------- Section 2.11(g) of the Company Disclosure Letter (any such agreement, contract --------------- or commitment, a "CONTRACTContract"). Each Contract is in full force and effect and is not subject to any material default thereunder, thereunder of which the Company has knowledge, Knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Merger Agreement (Goto Com Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 4.15(a) or as specifically set forth in of the Company Financials Disclosure Letter (including specifying the notes theretoappropriate subparagraph), the Company does not have, is not a party to and to, nor is not it bound by:by any of the following (each, a “Material Contract”):
(i) any collective bargaining agreements,employment 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 obligations,month 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 arrangements,by 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 to grant any severance or termination pay or benefits (in cash or otherwise, but excluding "at will" employee relationshipsstatutory notice payments and payments required by applicable Law) with an employee or individual consultant or salesperson or to any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Employee of the Company,;
(v) any agreement or plan, including, without limitation, 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 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 by this Agreement,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;
(viii) any lease of personal property or equipment having a value individually in excess of $25,000,50,000in the aggregate;
(viiix) any agreement of indemnification or guaranty,, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(viii) 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,
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,50,000 in the aggregate;
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xixii) 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;
(xiii) any 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 other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including guaranties,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; (iv) Company’s contracts, licenses 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, confidentiality and assignment agreements with employees, consultants or contractors; or
(xiixvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) daysLease Agreement.
(b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementMaterial Contract, contract nor does the Company have Knowledge of any event that would constitute such a breach, violation or commitment required to be set forth on SCHEDULE 2.13(a) default with the lapse of time, giving of notice or SCHEDULE 2.12(b) (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 material default 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. Following Except as set forth in Section 4.15(b) of the Closing DateDisclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the Company will be permitted to exercise all passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company's rights under the Contracts without the payment , no party to a Material Contract has any intention of any additional amounts or consideration other than ongoing fees, royalties or payments which terminating such Material Contract with the Company would otherwise be required to pay had or reducing the transactions contemplated by this Agreement not occurredvolume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Yext, Inc.)
Agreements, Contracts and Commitments. Part 3.7 of the PTI Disclosure Schedule identifies:
(a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto), the Company does not have, is not a party each PTI Contract relating to and is 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, severance, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,, other than PTI Contracts on PTI’s standard form offer letter entered into in the Ordinary Course of Business;
(ivb) each PTI Contract relating to the employment of, or the performance of employment-related services by, any employment Person, including any employee, consultant or consulting agreementindependent contractor, contract not terminable at will by PTI or commitment (excluding "its Subsidiaries, except to the extent general principles of wrongful termination law may limit PTI’s, PTI’s Subsidiaries’ or such successor’s ability to terminate employees at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,;
(vc) each PTI Contract relating to any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of the transactions contemplated by this Agreement employment) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Contemplated Transactions;
(vid) any lease of personal property having a value individually in excess of $25,000,
(vii) each PTI Contract relating to any agreement of indemnification or guaranty,guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between PTI and any of its officers or directors;
(viiie) any agreement, contract or commitment each PTI Contract containing any covenant limiting the freedom of the Company PTI or its Subsidiaries to engage in any line of business or to compete with any person,Person;
(ixf) any agreement, contract or commitment each PTI Contract relating to capital expenditures and involving future requiring payments after the date of this Agreement in excess of $25,000,250,000 and not cancelable without penalty;
(xg) any agreement, contract or commitment each PTI Contract currently in force relating to the disposition or acquisition of material assets or any ownership interest in any business enterprise outside the ordinary course of the Company's business,Entity;
(xih) each PTI Contract relating to any mortgages, indentures, loans loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties,credit in excess of $100,000 or creating any Encumbrances with respect to any assets of PTI or any PTI Subsidiary or any loans or debt obligations with officers or directors of PTI;
(xiii) all Contracts pursuant to which PTI grants any Person a license under any PTI-Owned IP Rights, other than software licensed to customers in the Ordinary Course of Business;
(j) other than “shrink wrap” and similar generally available commercial end-user licenses to software, all Contracts pursuant to which PTI or a PTI Subsidiary is licensed to use any Third-Party IP Rights;
(k) each PTI Contract currently in force (i) appointing a third party to distribute any PTI product, service or technology (identifying any that contain exclusivity provisions); (ii) for a third party to provide services or products with respect to any pre-clinical or clinical development activities of PTI; (iii) under which PTI or the PTI Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which PTI or the PTI Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by PTI or such PTI Subsidiary; or (iv) to license any third party to manufacture or produce any PTI product, service or technology or any Contract to sell, distribute or commercialize any PTI products or service, except agreements in the Ordinary Course of Business;
(l) each PTI Contract with any financial advisor, broker, finder, investment banker or other Person, providing advisory services to PTI in connection with the Contemplated Transactions; or
(m) any other agreement, contract or commitment that which is not terminable at will (with no penalty or payment) by PTI which involves payment or receipt by PTI or the PTI Subsidiaries under any such agreement, contract or commitment of $25,000 250,000 or more in the aggregate, or is obligations after the date of this Agreement in excess of $250,000 in the aggregate. PTI has made available to the Company accurate and complete (except for applicable redactions thereto) copies of all PTI Material Contracts, including all amendments thereto. There are no PTI Material Contracts that are not cancelable without penalty within thirty (30) days.
(b) The Company in written form. Except as set forth on Part 3.7 of the PTI Disclosure Schedule, neither PTI nor any of the PTI Subsidiaries nor, to PTI’s Knowledge, as of the date of this Agreement, has not any other party to a PTI Material Contract breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementof the agreements, contract contracts or commitment required commitments to be set forth on SCHEDULE 2.13(awhich PTI or the PTI Subsidiaries is a party or by which it is bound of the type described in clauses (a) or SCHEDULE 2.12(bthrough (l) above (any such agreement, contract or commitment, a "CONTRACT")“PTI Material Contract”) in such manner as would permit any party to cancel or terminate any PTI Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a PTI Material Adverse Effect. Each Contract is The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in full force and effect and is not subject any material payment or payments becoming due from PTI or any PTI Subsidiary to any material default thereunder, of which the Company has knowledge, by Person under any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredPTI Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) disclosed in Section 3.13 of the Disclosure Schedule, none of the Companies has or as specifically set forth in the Company Financials (including the notes thereto), the Company does not have, is not a party to and is not bound byto:
(ia) any collective bargaining agreements,;
(iib) any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations,;
(iiic) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,;
(ivd) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services organization, not terminable by such Company within thirty (30) days without liability, except to the extent general principles of wrongful termination law may limit such Company,'s ability to terminate employees at will;
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vif) any fidelity or surety bond or completion bond;
(g) any lease of personal property having a value individually in excess of $25,000,10,000;
(viih) any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business;
(viiii) any agreement, contract or commitment containing any covenant limiting the freedom of the such Company to engage in any line of business or to compete with any person,;
(ixj) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,10,000;
(xk) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xil) 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,guaranties referred to in clause (h) hereof;
(xiim) any purchase order or contract for the purchase of raw materials or acquisition of assets involving $10,000 or more;
(n) any construction contracts;
(o) any distribution, joint marketing or development agreements;
(p) any other agreement, contract or commitment that which involves $25,000 5,000 or more or and is not cancelable without penalty within thirty (30) days.; or
(bq) The Company any agreement which is otherwise material to such Company's business. None of the Companies has not breached, violated or defaulted under, or received notice in writing any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any material agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) which it is bound in such manner as would permit any other party to cancel or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which terminate the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredsame.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Bankers Insurance Group Inc)
Agreements, Contracts and Commitments. (a) Except as set Company Schedule 3.19 sets forth each of the following Contracts (each such Contract listed or that should be listed on SCHEDULE 2.13(aSchedule 3.19, a “Material Contract”) or as specifically set forth in to which any member of the Company Financials (including the notes thereto), the Company does not have, Group is not a party to and is not bound byor by which they or their properties or assets are bound:
(i) any collective bargaining agreements,Contract;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,the 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,arrangement, that is not listed on Company Schedule 3.28(a);
(ivv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) commission and/or sales Contract with an employee or Employee, individual consultant or salesperson salesperson, or any consulting or sales agreement, contract or commitment under which any a firm or other organization provides commission or sales-based services to any member of the Company,Company Group;
(vvi) any agreement Contract or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of the Merger or any of the other transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of the Merger or any of the other transactions contemplated by this Agreement,Agreement or the Related Agreements;
(vivii) any fidelity or surety bond or completion bond;
(viii) any lease of tangible personal property having a value individually in excess of $25,000,250,000;
(viiix) any agreement Contract of indemnification or guaranty,guaranty to any third party (other than agreements for the sale or resale of Company Products entered into in the ordinary course of business);
(viiix) any agreement, contract or commitment 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 person,Person, or which grants to any Person any exclusivity to any geographic territory, any customer, or any product or service;
(ixxi) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,250,000 in any individual case or $500,000 in the aggregate;
(xxii) any agreementContract entered into since December 31, contract or commitment 2014, relating to the acquisition or disposition or acquisition of 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 Company's business,Company Group’s Business 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;
(xixiii) 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 evidencing $500,000 or more of any Debt or securing such Debt;
(xiixiv) any unpaid 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 marketing (including any pilot program), development, content provider, destination site or merchant 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 Contract for distribution of any member of the Company Group Products or Services, or 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 agreement, contract or commitment Contract that involves $25,000 150,000 or more or and is not cancelable without penalty within upon thirty (30) days’ notice or less.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes theretoSchedule 2.12(a), the Company does not have, is not a party to and nor is not 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 (excluding "other than an oral offer of employment as an employee at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,.
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $25,000,100,000;
(viiviii) any agreement of indemnification or guaranty,;
(viiiix) 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,;
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,100,000;
(xxi) 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,;
(xixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements arrangements or instruments relating to the borrowing of money or extension of credit, including guarantiesguaranties referred to in clause (viii) hereof;
(xiii) any purchase order or contract for the purchase of raw materials involving $100,000 or more;
(xiv) any construction contracts;
(xv) any distribution, joint marketing or development agreement;
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or,
(xiixvii) any other agreement, contract or commitment that involves future obligations of or payments to the Company of $25,000 100,000 or more more. Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or is not cancelable without penalty within thirty (30) days.
(b) The default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(aSchedule 2.12(a) or SCHEDULE 2.12(bSchedule 2.11(b) (any such agreement, contract or commitment, a "CONTRACTContract"). Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any material default thereunder, thereunder of which the Company has knowledge, knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Corsair Communications 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 (aeach a "HTI Contract") of HTI at the date of this Agreement. Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto)HTI Disclosure Letter, the Company does not have, HTI is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee any officer- or individual consultant director-level employee, or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,member of HTI's Board of Directors;
(vd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan right plan, or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi) any lease of personal property having a value individually in excess of $25,000,
(viie) any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business other than indemnification agreements between HTI and any of its officers or directors;
(viiif) 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,;
(ixg) any agreement, contract contract, or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,10,000 and not cancelable without penalty;
(xh) any agreement, contract contract, or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture, or other business enterprise;
(xii) 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,;
(xiij) any joint marketing or development agreement (excluding agreements with resellers, value added resellers, or independent software vendors entered into in the ordinary course of business that do not permit such resellers or vendors to modify HTI's software products);
(k) any distribution agreement (identifying any that contain exclusivity provisions); or
(l) any other agreement, contract, or commitment which involves payment by HTI under any such agreement, contract or commitment that involves of $25,000 100,000 or more or individually and is not cancelable without penalty within thirty (30) days.
(b) The Company . Neither HTI, nor to HTI's knowledge any other party to a HTI Contract, 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 required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (terminate any such agreementHTI Contract, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject would permit any other party to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredseek damages.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Headwaters Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Sections 2.14(g), 2.14(h) or as specifically set forth in 2.15(a) of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not have, is not currently a party to and nor is not it currently 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually in excess of US $25,000,10,000 individually or US $25,000 in the aggregate;
(vii) any agreement of indemnification or guaranty,
(viiiv) 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,;
(ixvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of US $25,000,10,000 per annum in the aggregate;
(xvii) any agreement, contract or commitment relating to the leasing, licensing, disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xiviii) any mortgages, indentures, 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 involving in excess of US $3,000 individually or US $10,000 in the aggregate;
(x) any construction contracts;
(xi) any dealer, including guaranties,distribution, joint 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
(xiii) any other agreement, contract or commitment that involves US $10,000 individually or US $25,000 in the aggregate or more or is not cancelable without penalty within thirty (30) days.
(b) The Company is in compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract contract, covenant, instrument, lease, license or commitment required to be set forth on SCHEDULE 2.13(a) which the Company is a party or SCHEDULE 2.12(b) by which either is bound (any such agreement, contract or commitment, collectively a "CONTRACTContract"), nor is the Company or any Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and, to the knowledge of the Company and the Principal Shareholders, is not subject to any material default thereunder, of which the Company has knowledge, thereunder by any party obligated to the Company pursuant thereto. No consents, waivers and approvals of parties to any Contract are required thereunder in connection with the Acquisition for such Contracts to remain in effect without modification after the Closing. Following the Closing DateClosing, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Inference Corp /Ca/)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 2.17 of the Disclosure Schedule (specifying the appropriate paragraph), neither the Company Financials (including the notes thereto), the Company does not have, nor any of its Subsidiaries is not a party to and is not 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 bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson (other than "at will" employment agreements entered into in the ordinary course of business), any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to the Company,organization; EXECUTION VERSION
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually property;
(v) any lease of real property;
(vi) except as provided in excess Section 2.17(a)(vii) below, any agreement of $25,000,indemnification or guaranty;
(vii) any agreement of indemnification under any End User Agreement that (A) does not eliminate the Company's or guaranty,its Subsidiaries' potential liability for consequential or incidental damages or (B) place a cap on the potential liability of the Company or its Subsidiaries under such agreement;
(viii) 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,10,000 individually or $10,000 in the aggregate;
(xix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's or its Subsidiaries' business,;
(xix) 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,;
(xi) any purchase order or contract for the purchase of materials involving in excess of $10,000 individually;
(xii) any construction contracts;
(xiii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or 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 its Subsidiaries; or EXECUTION VERSION
(xvi) other than customer purchase orders, any other agreement, contract or commitment that involves $25,000 10,000 individually or $10,000 in the aggregate or more or with respect to any Person and is not cancelable without penalty within thirty (30) 30 days.
(b) The Except as set forth in Section 2.17(b) of the Disclosure Schedule, there are no end-user customers that account for greater than five percent (5%) of the Company's net sales. Section 2.17(b) of the Disclosure Schedule contains a list of the Company's 10 largest resellers for each of the audited fiscal year ended December 31, 2003 and the 12 months ended December 31, 2004 and sets forth opposite the name of each such reseller the percentage of net sales attributable to such reseller. During the last 12 months, the Company has not received any written notices or threats of termination from any of such resellers that any such reseller intends or otherwise anticipates a termination or material reduction in the level of business with the Company. True 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, the "Material Contracts") have been delivered to Parent. 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 enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company. Each of the Company and its Subsidiaries, as applicable, is in compliance with and has not breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT")Material Contract. Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any No party obligated to the Company pursuant thereto. Following 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 Closing Datelapse 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) All outstanding indebtedness of the Company will or its Subsidiaries may be permitted to exercise all of the Company's rights under the Contracts prepaid without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredpenalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (aA) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth All of NetWorth's currently effective agreements, contracts and commitments are listed in the Company Financials (Schedule 2.12, including the notes thereto)name of the contracting part, date of execution and termination, and copies of all such agreements, contracts and commitments are annexed as exhibits to schedule 12.
(B) Subject to the Company terms and conditions of any agreement included as part of Schedule 2.12, NetWorth does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services organization, not terminable by NetWorth on thirty days notice without liability, except to the Company,extent general principles of wrongful termination law may limit NetWorth's ability to terminate employees at will;
(v5) any Any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi6) any Any fidelity or surety bond or completion bond;
(7) Any lease of personal property having a value individually in excess of $25,000,5,000;
(vii) any 8) Any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business;
(viii9) 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,;
(ix10) any Any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,2,000 in any single instance or $10,000 in the aggregate;
(x11) any Any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xi12) 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 credit or guaranties,;
(xii13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any single instance or $10,000 or more in the aggregate;
(14) Any construction contracts;
(15) Any distribution, joint marketing or development agreement;
(16) Any other agreement, contract or commitment that which involves $25,000 1,000 or more in any single instance or more than $10,000 in the aggregate and is not cancelable without penalty within 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) The Company (1) 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 required to be which it is bound (including those set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (in any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all of the Company's rights under NetWorth Schedules) in such manner as would permit any other party to cancel or terminate the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredsame.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(aSection 3.18(a) or as specifically set forth in of the Company Financials (including Disclosure Schedule, lists all of the notes thereto), following to which the Company does not have, is not a party to and is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson salesperson, or any consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services (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, 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 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 by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually in excess of $25,000,25,000 individually or $50,000 in the aggregate;
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ixv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually or $50,000 in the aggregate;
(xvi) any agreement, contract 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 or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xiviii) 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 single source suppliers, including guaranties,custom manufacturers or involving in excess of $25,000 individually or $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 agreementagreement for distribution of the Company's products, contract technology or commitment services by a third party;
(xiii) any Contract of indemnification or any guaranty other than 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 Contract currently in force to provide source code to any third party for any product or technology;
(xv) any material settlement agreement entered into prior to the date of this Agreement pursuant to which the Company has continuing obligations or rights;
(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 Contract that involves $25,000 individually or $50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice and any other Contract 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 SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all of the Company's rights under the Contracts cancelable without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredpenalty within twelve (12) months.
Appears in 1 contract
Agreements, Contracts and Commitments. Schedule 2.16 contains a complete and accurate list, and Sellers have delivered to Buyer, true and complete copies of all material contracts. With respect to each of the agreements, contracts and arrangements required to be disclosed on Schedule 2.16, (ai) Except as set forth on SCHEDULE 2.13(asuch agreement, contract or arrangement is legal, valid, binding, enforceable in accordance with its terms and is in full force and effect, (ii) or as specifically set forth in the Company Financials (including the notes thereto)is not in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default by the Company does not have, is not a or permit any third party to terminate, modify or accelerate such agreement, (iii) the Company has not repudiated any provision of such agreement, contract or arrangement, and (iv) to each of the Seller’s Actual Knowledge, no third party is not bound by:
in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default by such third party or permit the Company to terminate, modify, or accelerate such agreement, contract or arrangement. Material Agreements to be listed on Schedule 2.16 shall include, without limitation, (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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to agreement for the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any lease of personal property having a value individually in excess of $25,000,
(vii) to or from any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future Person providing for lease payments in excess of $25,000,
5,000.00 per annum; (ii) any agreement for the purchase or 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 (1) year or involve consideration in excess of $5,000.00; (iii) any agreement concerning a partnership or joint venture; (iv) any agreement under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $5,000.00, or under which it has imposed a lien on any of the Company’s assets, tangible or intangible; (v) any material agreement concerning confidentiality or non-competition; (vi) any material agreement with any of Sellers and/or their affiliates; (vii) any profit or equity sharing, deferred compensation, severance, or other material plan or arrangement for the benefit of the Company’s current or former directors, officers, and employees; (viii) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis; (ix) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees; (x) any agreement, contract agreement under which the consequences of a default 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,
termination could have a Material Adverse Effect; (xi) any mortgagessettlement, indenturesconciliation or similar agreement, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing performance of money or extension which will involve payment after the Closing Date of credit, including guaranties,
consideration in excess of $5,000.00; (xii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions loan agreement agreements of any agreement, contract kind or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of nature under which the Company has knowledge, by is a borrower or lender; or (xiii) any party obligated to other agreement the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all performance of the Company's rights under the Contracts without the payment which involves consideration in excess of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurred$5,000.00.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 3.14 of the Company Financials Disclosure Schedule (including specifying the notes theretoappropriate subparagraph), the Company does not have, is not a party to, nor is it bound by any of the following (each, a “Material Contract”) to and is not bound bythe extent currently in effect:
(i) any collective bargaining agreements,(A) employment, contractor or consulting Contract with an employee, individual consultant or contractor, or (B) consulting Contract with a firm or organization (excluding any agreement or offer letter that is terminable at-will and does not provide for severance or termination payments);
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property or equipment having a value individually in excess of $25,000,10,000 individually or $25,000 in the aggregate;
(viiv) any agreement of indemnification or guaranty,, but excluding agreements of indemnification or guaranty with respect to the infringement by the Company Products of the Intellectual Property Rights of third parties that are contained in the Company’s written agreements with its customers that have been entered into in the ordinary course of business, consistent with past practices, substantially in the Company’s standard form of customer agreement;
(viii) 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,
(ixvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,10,000 individually or $25,000 in the aggregate;
(xvii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,, consistent with past practices;
(xiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(ix) any purchase order, including guarantiescontract or other commitment obligating the Company to purchase materials or services at a cost in excess of $10,000 individually or $25,000 in the aggregate;
(x) any agreement containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, “most favored nations,” restriction on the operation or scope of its businesses or operations, or similar terms;
(xi) any agreement providing a customer with refund rights;
(xii) any agreement for the use, distribution or integration of the Company Products other than by the consumer end-user, including dealer, distribution, marketing, development, sales representative, original equipment manufacturer, manufacturing, supply, value added, remarketer, reseller, vendor, business partner, service provider and joint venture agreements;
(xiii) any agreement pursuant to which the Company has received revenue or other payments in excess of $10,000 individually or $25,000 in the aggregate;
(xiv) any terms of use or terms of service, including those posted or implemented as “browsewrap” or “clickwrap” agreements, for third-party Web sites and other publicly accessible on-line sources from which the Company or a person acting on the Company’s behalf has extracted or collected information through the use of any “scrapers,” “spiders,” “bots” or other automated software programs or processes;
(xv) any contracts, licenses and agreements to which the Company is a party with respect to any Technology or Intellectual Property Rights, including any in-bound licenses, out-bound licenses, and cross-licenses; or
(xvi) any other agreement, contract or commitment that involves $10,000 individually or $25,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) The Company is in compliance 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 agreementMaterial Contract, contract nor does the Company have Knowledge of any event that would constitute such a breach, violation or commitment required to be set forth on SCHEDULE 2.13(a) default with the lapse of time, giving of notice or SCHEDULE 2.12(b) (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 material default 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 default thereunder. Following Except as set forth in Section 3.14(b) of the Closing DateDisclosure Schedule, no Material Contract will terminate, or may be terminated by either party, solely by the Company will be permitted to exercise all passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company's rights under the Contracts without the payment , no party to a Material Contract has any intention of any additional amounts or consideration other than ongoing fees, royalties or payments which terminating such Material Contract with the Company would otherwise be required to pay had or reducing the transactions contemplated by this Agreement not occurredvolume of business such party conducts with the Company, whether as a result of the Stock Sale or otherwise.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sensei Biotherapeutics, Inc.)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 2.16(a) or as specifically set forth in of the Company Financials (including the notes thereto)NSC Disclosure Schedule, the Company does not have, NSC is not a party to and is not 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, 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 any officer or director level employee, not terminable by NSC on thirty (excluding "30) days notice without liability, except to the extent general principles of wrongful termination law may limit NSC's ability to terminate employees at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,;
(vc) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi) any lease of personal property having a value individually in excess of $25,000,
(viid) any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business other than indemnification agreements between NSC and any of its officers or directors;
(viiie) any agreement, contract or commitment containing any covenant limiting the freedom of the Company NSC to engage in any line of business or to compete with any person,;
(ixf) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,25,000 and not cancelable without penalty;
(xg) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other . business enterprise;
(xih) 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,credit in excess of $25,000;
(xiii) any joint marketing or development agreement;
(j) any distribution agreement (identifying any that contain 'exclusivity provisions); or
(k) any other agreement, contract or commitment that involves (excluding real and personal property leases) which involve payment by NSC under any such agreement, contract or commitment of $25,000 or more or in the aggregate and is not cancelable without penalty within thirty (30) days.
. NSC has not, nor to NSC's knowledge has any other party to a NSC Contract (b) The Company has not as defined below),' breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementof the agreements, contract contracts or commitment required commitments to be set forth on SCHEDULE 2.13(awhich NSC is a party or by which it is bound of the type described in clauses (a) or SCHEDULE 2.12(bthrough (1) above (any such agreement, contract or commitment, a "CONTRACTNSC Contract"). Each ) in such manner as would permit any other party to cancel or terminate any such NSC Contract, or would permit any other party to seek damages which would reasonably be expected to have a Material Adverse Effect.. As to NSC, each NSC Contract is valid, binding, enforceable and in full force and effect effect, except as enforceability may be limited by bankruptcy and is not subject to any material default thereunder, other similar laws and general principles of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredequity.
Appears in 1 contract
Sources: Merger Agreement (Proteonomix, Inc.)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 2.17 of the Disclosure Schedule (specifying the appropriate paragraph), neither the Company Financials (including the notes thereto), the Company does not have, nor any of its Subsidiaries is not a party to and to, nor is 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 (excluding "at will" employee relationships) 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 under which any with a firm or other organization provides services to the Company,organization;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planplan (A) relating to the sale, issuance, grant, exercise, award, purchase or redemption of any shares of 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually in excess of $25,000,25,000 individually or $100,000 in the aggregate;
(v) any lease of real property;
(vi) any agreement of indemnification or 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 guaranty,any of its Subsidiaries in excess of two (2) times the value of total payments to the Company or its Subsidiaries under such agreement;
(viii) 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually or $100,000 in the aggregate;
(xix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xix) 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,;
(xi) any purchase order or contract for the purchase of materials involving payments in excess of $10,000 individually or $50,000 in the aggregate;
(xii) any construction contracts;
(xiii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or 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
(xix) other than customer purchase orders arising in the ordinary course of business to the extent that the purchase or sale provided for therein has been performed in full on or prior to the date of this Agreement, any other agreement, contract or commitment that involves payments in excess of $25,000 individually or $100,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.17 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered 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 binding agreement of the Company or its Subsidiary, enforceable against the Company 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 has and its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received written notice or notice via electronic mail that it has breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Material Contract and, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (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 material default thereunder, of which the Company has knowledge, by any no party obligated to the Company pursuant thereto. Following 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 Closing Datelapse 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 and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Material Contract to have been performed by the Company or such Subsidiary prior to the date hereof, and to the Knowledge of the Company, without giving effect to the Merger, the Company will be permitted to exercise fulfill, when due, all of the Company's rights its obligations under the Material Contracts without that remain to be performed after the payment date hereof.
(d) To the Knowledge of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required and its Subsidiaries, with respect to pay had any Government Contract, there is, as of the transactions contemplated date of this Agreement, no: (i) claim or request by this Agreement not occurreda Governmental Entity for a contract price adjustment; (ii) dispute involving the Company or any of its Subsidiaries; or (iii) claim or equitable adjustment by the Company or any of its Subsidiaries. Neither the 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) Except as set Schedule 3.12(a) of the Disclosure Schedule sets forth on SCHEDULE 2.13(a) or as specifically set forth in a list of the Contracts the Company Financials (including the notes thereto), the Company does not have, is not a party to as of immediately prior to the Closing, except for this Agreement, the Related Agreements and is not bound bythe Contracts specifically identified on Section 3.11(d) of the Disclosure Schedule:
(i) (A) any collective bargaining agreements,type 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 or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement Contract or plan, including, without limitation, 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 value of any of the benefits of which will shall be calculated solely on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any lease of any real property or material personal property having a value individually in excess of $25,000,property;
(viiiv) any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,40,000 in any fiscal year;
(x) 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,
(xiv) 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;
(vi) any 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), including guaranties,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 agency, dealer, distribution, sales representative, remarketer, reseller, or other Contract for the distribution of Company Products;
(xiv) any Contract 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 Contract granting any license or other rights in, to or from 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 the payment to or from the Company in excess of $25,000 or more or is not cancelable without penalty within thirty (30) days40,000 in any fiscal year.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any made available correct and complete copies of the terms or conditions of any agreement, contract or commitment each Contract required to be set forth disclosed pursuant to Sections 3.2, 3.10, 3.11 (except for each Contract entered into on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreementa Standard Form Agreement), contract or commitment, a "CONTRACT"3.12 and 3.19(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 has not received written or, to the Knowledge of the Company, oral notice of being in default in respect of, any Material Contract. Each Contract of the Material Contracts is valid, binding and enforceable against the Company and the other parties thereto, 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 or material event of default under any Material Contract, or (ii) give any third party (A) the right to declare a material default or exercise any material default thereunderremedy 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 which any material obligation of the Company under any Material Contract, or (D) the right to cancel, terminate or modify any Material Contract. The Company has knowledgenot received any written notice or any other written communication regarding, by any party obligated and to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all Knowledge of the Company's rights under the Contracts without the payment , is not aware of, any actual or possible violation or breach of, default under, or intention of any additional amounts party thereto to cancel or consideration other than ongoing feesmodify 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, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredand (2) summaries of each oral Material Contract, if any.
Appears in 1 contract
Sources: Merger Agreement (Comscore, Inc.)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes theretoSchedule 2.12(a), the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000100,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) 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,
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000100,000,
(xxi) 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,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract for the purchase of raw materials involving $100,000 or more to be incurred by the Company following the date of this Agreement,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvii) any other agreement, contract or commitment that involves $25,000 100,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The To the knowledge of the Company, except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(aSchedule 2.12(a) or SCHEDULE 2.12(bSchedule 2.11(g) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.a
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 3.12 of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not havehave continuing obligations under, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,, except as provided herein;
(vif) any fidelity or surety bond;
(g) any lease of personal property having a value annual lease payments individually in excess of $25,000,;
(viih) any agreement of indemnification or guaranty,guaranty other than in the ordinary course of business;
(viiii) 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,;
(ixj) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,;
(xk) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xil) 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,
guaranties referred to in clause (xiiviii) any other agreement, contract or commitment that involves hereof in an individual amount in excess of $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) 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 required to be set forth on SCHEDULE 2.13(ain Schedule 3.12 of the Company Disclosure Schedule, or (ii) any other material agreement, contract or SCHEDULE 2.12(b) commitment to which it is a party or by which it is bound (any such agreement, contract or commitment, a "CONTRACT"“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 material default thereunder, thereunder of which the Company has knowledge, is aware by any party obligated to the Company pursuant thereto, other than late payments, nonpayment. Following the Closing DateEach Contract requiring any consent, the Company will be permitted to exercise all waiver or third-party approval as a result 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 transaction contemplated by this Agreement not occurredis disclosed in Schedule 3.12 of the Company Disclosure Schedule. Neither the execution of this Agreement nor consummation of the transactions contemplated hereby will cause any default or breach under any Contract, including without limitation any key man clause in any Contract, or the acceleration of any payment obligation of the Company.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 2.14 of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not havehave continuing obligations under, is not a party to and to, nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services organization, other than oral agreements terminable at will which consist solely of agreements by the Company to employ any employee, and corresponding agreements by any employee to conduct work for the Company,;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,, except as provided herein;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value annual lease payments individually in excess of $25,000,US$10,000;
(viiviii) any agreement of indemnification or guaranty,guaranty other than in the ordinary course of business;
(viiiix) 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,;
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,US$10,000 in the aggregate;
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xixii) 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,any guarantees;
(xiixiii) any purchase order or contract for the purchase of raw materials involving US$10,000 or more;
(xiv) any construction contracts;
(xv) any distribution, joint marketing or development agreement;
(xvi) any agreement, contract or commitment with any customer which, during the last two fiscal years of the Company, accounted for, or 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
(xvii) any other agreement, contract or commitment that involves $25,000 US$10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(ain Section 2.14 of the Disclosure Schedule, or (ii) any other agreement, contract or SCHEDULE 2.12(b) commitment to which it is a party or by which it is bound (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, thereunder of which the Company has knowledge, or any of the Principal Securityholders is aware by any party obligated to the Company pursuant thereto. Following The Company has obtained, or will obtain prior to the Closing DateClosing, the Company will be permitted all necessary consents, waivers and approvals of parties 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 Contract as are required to pay had in connection with the transactions contemplated hereby and by this Agreement not occurredeach of the Related Agreements, or as are required or advisable in order to remain in effect without modification after the consummation of the transactions contemplated hereby and thereby.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 2.17 of the Company Financials (including the notes thereto)WEST Disclosure Schedule, the Company does not have, neither WEST nor any of its subsidiaries is not a party to and or is not bound by, whether written or oral:
(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 (excluding "at will" employee relationships) with an employee any officer or individual consultant or salesperson director level employee, not terminable by WEST or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,of its subsidiaries on thirty (30) days notice without liability;
(vd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi) any lease of personal property having a value individually in excess of $25,000,
(viie) any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business;
(viiif) any agreement, contract or commitment containing any covenant limiting the freedom of the Company WEST or any of its subsidiaries to engage in any line of business or to business, compete with any person,person or do business in any geographic area;
(ixg) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,100,000 and not cancelable;
(xh) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xii) any mortgages, capital leases, 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 any such agreements and instruments entered into after the date hereof in the ordinary course of business consistent with past practice; or
(xiij) any other agreement, contract or commitment that involves (excluding real and personal property leases) which involve payment by WEST or any of its subsidiaries under any such agreement, contract or commitment of $25,000 100,000 or more or in the aggregate which is not cancelable without penalty within thirty (30) days.
, other than any such agreements and instruments entered into after the date hereof in the ordinary course of business consistent with past practice. Neither WEST nor any of its subsidiaries, nor to WEST's knowledge, any other party to a WEST Contract (b) The Company as defined below), has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementof the agreements, contract contracts or commitment required commitments to be set forth on SCHEDULE 2.13(awhich WEST or any of its subsidiaries is a party or by which any of them is bound of the type described in clauses (a) or SCHEDULE 2.12(bthrough (j) above (any such agreement, contract or commitment, a "CONTRACTWEST Contract"). Each Contract is ) in full force and effect and is not subject such manner as would permit any other party to cancel or terminate any material default thereundersuch WEST Contract, of or would permit any other party to seek damages, which the Company has knowledge, by any party obligated could reasonably be expected to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredhave a Material Adverse Effect on WEST.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 2.11(a) or as specifically set forth in of the Company Financials (including Lanacom Disclosure Schedule, neither Lanacom nor any of the notes thereto)Lanacom Subsidiaries have continuing obligations under, the Company does not have, is not nor are any of them a party to and is not nor are bound by:
(i) any voluntary recognition agreements, accreditation order or collective bargaining agreements,;
(ii) any agreements or arrangements that contain any severance pay or post-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, incentive, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,, except as provided herein;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value annual lease payments individually in excess of $25,000,;
(viiviii) any agreement of indemnification indemnification, warranty or guaranty,guaranty other than in the ordinary course of business;
(viiiix) any agreement, contract or commitment containing any covenant limiting the freedom of Lanacom or any of the Company Lanacom Subsidiaries to engage in any line of business or to compete with any person,;
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,_______;
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of assets any material assets, or any interest in any business enterprise outside the ordinary course of Lanacom and the Company's Lanacom Subsidiaries' business,, taken as a whole;
(xixii) 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,;
(xiixiii) any distribution, joint marketing or development agreement;
(xiv) any agreement, contract or commitment with any customer which, during the last two fiscal years of Lanacom, accounted, or is expected to account during Lanacom's current fiscal year, for more than 5% of Lanacom's revenue or trade payables;
(xv) any other agreement, contract or commitment that involves $25,000 _______ or more or is not cancelable without penalty within thirty (30) days;
(xvi) transfer or license to any third party or otherwise extend, amend or modify any rights to Lanacom Intellectual Property or acquire, license or otherwise procure any intellectual property right of any third party; or
(xvii) enter into any agreement restricting Lanacom or any of the Lanacom Subsidiaries from any business activity.
(b) The Company has not Except for any alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.11(b) of the Lanacom Disclosure Schedule, neither Lanacom nor any of the Lanacom Subsidiaries have 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 which it is bound (including those set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) in the Lanacom Disclosure Schedule (any such agreement, contract or commitment, of Lanacom or its Subsidiaries (a "CONTRACTLanacom Contract")). Each Lanacom Contract is in full force and effect and and, except as otherwise disclosed in Section 2.11(b) of the Lanacom Disclosure Schedule, is not subject to any material default thereunder, thereunder of which Lanacom or any of the Company has knowledge, Lanacom Subsidiaries is aware by any party obligated to Lanacom or any of the Company Lanacom Subsidiaries pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Acquisition (Backweb Technologies LTD)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain or excepted from (by virtue of the specific exclusions contained in Section 2.12(g) or Section 2.12(h) of the Disclosure Schedule) Sections 2.12(g) and 2.12(h) of the Disclosure Schedule, or as specifically set forth in Section 2.13(a) of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually in excess of $25,000,25,000 individually or $100,000 in the aggregate;
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ixv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually or $100,000 in the aggregate;
(xvi) 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,;
(xivii) 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;
(viii) any purchase order or contract for the purchase of materials involving in excess of $25,000 individually or $100,000 in the aggregate;
(ix) any construction contracts;
(x) any dealer, including guaranties,distribution, joint 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
(xii) any other agreement, contract or commitment that involves $25,000 individually or $100,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lsi Logic Corp)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in As of the Company Financials (including the notes thereto)date of this ------------------------------------- Agreement, the Company does not have, is not a party to and nor is not it bound by:
(i) any collective bargaining agreements,
(ii) any agreements or arrangements that contain any severance pay or similar post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) agreement with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any agreement with a firm or other organization provides services to the Companyorganization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any lease of personal property having a value individually in excess of $25,000fidelity or surety bond or completion bond,
(vii) any agreement lease of indemnification or guarantypersonal property involving annual payments by the Company in any individual case in excess of $50,000,
(viii) other than pursuant to the Company's standard end-user license agreement (which is attached to the disclosure schedule), any agreement, contract agreement pursuant to which the Company is obligated to provide indemnification or commitment guaranty the indebtedness or liabilities of third parties,
(ix) any agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(ixx) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments required to be made by the Company after the date of this Agreement in excess of $25,000100,000,
(xxi) any agreement, contract or commitment agreement relating to the disposition or acquisition by the Company after the date of this Agreement of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by or extension of creditcredit by or to the Company, including guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract for the purchase of raw materials (not including in-license of technology) involving $50,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement which cannot be canceled without penalty upon notice of sixty (60) days or less,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code, or
(xvii) any other agreement, contract or commitment agreement that involves payments by the Company of $25,000 100,000 or more or more; or
(xviii) any other agreement that is not cancelable without penalty of $25,000 or more within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Merger Agreement (Critical Path Inc)
Agreements, Contracts and Commitments. (aA) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth disclosed in the Company Financials (including the notes thereto)Schedule 2.12, the Company WRI does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services organization, not terminable by WRI on thirty days notice without liability, except to the Company,extent general principles of wrongful termination law may limit WRI's ability to terminate employees at will;
(v5) any agreement Agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi6) any Any fidelity or surety bond or completion bond;
(7) Any lease of personal property having a value individually in excess of $25,000,2,000;
(vii) any 8) Any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business;
(viii9) any Any agreement, contract or commitment containing any covenant limiting the freedom of the Company WRI to engage in any line of business or to compete with any person,;
(ix10) any Any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,5,000 in any single instance or $20,000 in the aggregate;
(x11) any Any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xi12) any Any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties,guaranties referred to in Schedule 2.12(A)(12) hereof;
(xii13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any single instance or $20,000 or more in the aggregate;
(14) Any construction contracts;
(15) Any distribution, joint marketing or development agreement;
(16) Any other agreement, contract or commitment that which involves $25,000 2,000 or more in any single instance or more than $20,000 in the aggregate and is not cancelable without penalty within thirty (30) daysdays other than standard end-user licenses of WRI's products and services in the ordinary course of business consistent with past practice, or
(17) Any agreement which is otherwise material to WRI's business.
(bB) The Company (1) WRI 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 required to be which it is bound (including those set forth on SCHEDULE 2.13(ain any of WRI Schedules) in such manner as would permit any other party to cancel or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which terminate the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredsame.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 2.12(a) or as specifically set forth in of the Company Financials (including the notes thereto)Disclosure Letter, the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) Contract with an employee or individual consultant or salesperson or any consulting or sales agreement, contract agreement or commitment Contract under which any firm or other organization provides services to the Company,;
(v) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (or upon the occurrence of any subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Agreement (or upon the occurrence of any subsequent events);
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $25,000,25,000 individually or $50,000 in the aggregate;
(viiviii) any agreement of indemnification or guaranty,;
(viiiix) 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,;
(ixx) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or $100,000 in the aggregate;
(xxi) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside other than the ordinary course sale of inventory in the Company's business,Ordinary Course of Business;
(xixii) 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,guaranties referred to in clause (viii) hereof;
(xiixiii) any purchase order or Contract for the purchase of raw materials or finished products involving $50,000 or more per order or $100,000 or more in the aggregate to be incurred by the Company following the date of this Agreement;
(xiv) any construction Contracts;
(xv) any distribution, joint marketing or development agreement;
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvii) any other agreement, contract or commitment Contract that involves $25,000 50,000 or more individually or $100,000 or more in the aggregate or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment Contract required to be set forth on SCHEDULE 2.13(aSection 2.11 or Section 2.12(a) or SCHEDULE 2.12(b) of the Company Disclosure Letter (any such agreement, contract or commitmentContract, a "CONTRACT"“Key Contract”). Each Key Contract is in full force and effect and is not subject to any material default thereunderand, except as otherwise disclosed in Section 2.12(b) of which the Company has knowledgeDisclosure Letter, by any to the Company’s Knowledge, no party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurreda Key Contract is in default thereunder.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain Section 4.15(a) or as specifically set forth in of the Company Financials Disclosure Letter (including specifying the notes theretoappropriate subparagraph), the Company does not have, is not a party to and to, nor is not it bound by:by any of the following (each, a “Material Contract”):
(i) any collective bargaining agreements,employment 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 obligations,month 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 arrangements,by 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 to grant any severance or termination pay or benefits (in cash or otherwise, but excluding "at will" employee relationshipsstatutory notice payments and payments required by applicable Law) with an employee or individual consultant or salesperson or to any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Employee of the Company,;
(v) any agreement or plan, including, without limitation, 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 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 by this Agreement,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;
(viii) any lease of personal property or equipment having a value individually in excess of $25,000,50,000in the aggregate;
(viiix) any agreement of indemnification or guaranty,, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(viii) 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,
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,50,000 in the aggregate;
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xixii) 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;
(xiii) any 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 other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including guaranties,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; (iv) Company’s contracts, licenses 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, confidentiality and assignment agreements with employees, consultants or contractors; or
(xiixvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) daysLease Agreement.
(b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementMaterial Contract, contract nor does the Company have Knowledge of any event that would constitute such a breach, violation or commitment required to be set forth on SCHEDULE 2.13(a) default with the lapse of time, giving of notice or SCHEDULE 2.12(b) (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 material default 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. Following Except as set forth in Section 4.15(b) of the Closing DateDisclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the Company will be permitted to exercise all passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company's rights under the Contracts without the payment , no party to a Material Contract has any intention of any additional amounts or consideration other than ongoing fees, royalties or payments which terminating such Material Contract with the Company would otherwise be required to pay had or reducing the transactions contemplated by this Agreement not occurredvolume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Sources: Merger Agreement
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(aPart 2.12(a) or as specifically set forth in of the Company Financials (including Disclosure Letter lists the notes thereto)following written or oral contracts, agreements, commitments and other arrangements to which the Company does not have, is not a party to and or by which the Company or any of its assets is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,;
(vxv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vixvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000,;
(viixviii) any agreement of indemnification or guaranty,;
(viiixix) 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,;
(ixxx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,;
(xxxi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course Ordinary Course of the Company's business,Business;
(xixxii) 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,guaranties referred to in clause (xviii) hereof;
(xiixxiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxiv) any distribution, joint 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
(xxvii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breacheddelivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), violated or defaulted underPart 2.11(q), or received notice that it has breachedPart 2.11(r), violated or defaulted under, any Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms or and conditions of any agreementeach oral agreement referred to in such parts of the Company Disclosure Letter (collectively, contract or commitment required all such agreements are referred to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a as the "CONTRACTContracts"). Each Contract Except as set forth in Part 2.12(b) of the Company Disclosure Letter, with respect to each such agreement: (A) the agreement, with respect to the Company and, to the Company's and the Principal Stockholders' Knowledge, all other parties thereto, is legal, valid, binding, enforceable, and in full force and effect and is not subject to any material default thereunder, of which in all respects; (B) neither the Company has knowledgenor, by any party obligated to the Company's or the Principal Stockholders' Knowledge, any other Party is in breach or default, and 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) no Party has repudiated any provision of the agreement; and (D) the Company pursuant theretodoes 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. Following Subject to receipt of the Closing Dateconsents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the Contracts 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 than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredpay.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tibco Software Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(aSection 2.15(a) or as specifically set forth in of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not have, is not a party to and is not bound by:
(ia) any collective bargaining agreements,;
(iib) any agreements employment, consulting or arrangements that contain non-competition agreement, contract or commitment with any severance pay officer, director, employee or post-employment liabilities or obligations,member of the Company's Board of Directors;
(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 (excluding "at will" employee relationships) agreement with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other organization provides services to the Company,;
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, or under which payments are required to be made by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vif) any fidelity or surety bond or completion bond;
(g) any lease (whether of real or personal property property) having a value individually in excess of $25,000,10,000;
(viih) any agreement of indemnification or guaranty,, except for indemnification or guarantees provided in the ordinary course of business in connection with the provision of the Company's services or sale of the Company's products;
(viiii) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company to engage in any line of business or to compete with any person,person or granting any exclusive distribution rights;
(ixj) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000,10,000;
(xk) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company after the date of this Agreement of a material amount of assets or any interest not in any business enterprise outside the ordinary course of business or pursuant to which the Company's business,Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xil) 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,guaranties referred to in clause (h) hereof;
(xiim) any purchase order or contract involving the expenditure by the Company of $10,000 or more for the Company's products or $10,000 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 settlement agreement entered into since the Company's initial incorporation; or
(t) any other agreement, contract or commitment agreement that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b. Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Section 2.15(b) The of the 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 terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(aSection 2.15(a) or SCHEDULE 2.12(b) of the Disclosure Schedule (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is a valid and binding agreement of the Company and is in full force and effect and and, except as otherwise disclosed in Section 2.15(b) of the Disclosure Schedule, is not subject to any material default thereunder, thereunder of which the Company has knowledge, actual knowledge by any party obligated to the Company pursuant thereto. Following True and complete copies of each such Contract have been delivered to the Closing Date, 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 by this Agreement not occurredPurchaser.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(aSection 3.13(a) or as specifically set forth in of the Company Financials Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (including the notes thereto)each, a “Company Material Contract” and collectively, the “Company does not have, is not a party to and is not bound by:Material Contracts”):
(i) each Company Contract relating to any collective bargaining agreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any material bonus, deferred compensation, severance, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,;
(ivii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or consulting agreementindependent contractor services, contract not terminable by the Company or commitment its Subsidiaries on ninety (excluding "90) days’ or less notice without liability, except to the extent general principles of wrongful termination Law may limit the Company’s, its Subsidiaries’ or such successor’s ability to terminate employees at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,;
(viii) each Company Contract relating to any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Contemplated Transactions;
(viiv) any lease of personal property having a value individually in excess of $25,000,
(vii) each Company Contract relating to any agreement of indemnification or guaranty,guaranty not entered into in the Ordinary Course of Business;
(viiiv) any agreement, contract or commitment each Company Contract containing (A) any covenant limiting the freedom of the Company Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or to compete with any person,Person, or limiting the development, manufacture or distribution of the Company’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision;
(ixvi) any agreement, contract or commitment each Company Contract relating to capital expenditures and involving future requiring payments after the date of this Agreement in excess of $25,000,100,000 pursuant to its express terms and not cancelable without penalty;
(xvii) any agreement, contract or commitment each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any business enterprise outside the ordinary course of the Company's business,Entity;
(xiviii) each Company Contract relating to any mortgages, indentures, loans loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company;
(ix) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or (D) any Contract to license any patent, trademark registration, service ▇▇▇▇ registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(x) each Company Contract with any Person, including guaranties,any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(xi) each Company Real Estate Lease;
(xii) each Company Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $100,000; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $100,000 in the aggregate, or obligations after the date of this Agreement in excess of $100,000 in the aggregate or (B) that involves $25,000 is material to the business or more or is not cancelable without penalty within thirty (30) daysoperations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Zordich accurate and complete copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. Neither the Company nor any of its Subsidiaries has, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, 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 Company Material Contract in such manner as would permit any other party to cancel or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (terminate any such agreementCompany Material Contract, contract or commitmentwould permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Company and its Subsidiaries, a "CONTRACT"). Each as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect and is not effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material default thereunder, of which the Company has knowledge, by any party obligated amount paid or payable to the Company pursuant thereto. Following the Closing Date, the under any Company will be permitted to exercise all of the Company's rights under the Contracts without the payment Material Contract or any other material term or provision of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredMaterial Contract.
Appears in 1 contract
Sources: Merger Agreement (Zafgen, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.11(a) of the 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 on SCHEDULE 2.13(ain Section 2.11(a) or as specifically set forth in of the Company Financials (including the notes thereto)Disclosure Letter, the Company or any Subsidiary does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(v) except as set forth in Section 2.11(a)(v) of the Disclosure Letter, any agreement or plan, plan (including, without limitation, 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 by this Agreement,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 $25,000,50,000;
(viiviii) any agreement of indemnification indemnification, guaranty or guaranty,suretyship;
(viiiix) 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,;
(x) any agreement, contract or commitment relating to current or future capital expenditures or involving future payments individually in excess of $50,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets assets, properties or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xixii) 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,guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiixiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $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
(xvii) 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) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.11(b) of the Disclosure 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 required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT")Material Contract. Each Material Contract is in full force and effect and is not subject to any material default thereunder, thereunder of which the Company has knowledge, knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, the The Company will be permitted use commercially reasonable efforts to exercise obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any and all contracts and agreements as are required in connection with the Company's rights under Merger and the Contracts without other transactions contemplated hereby and by the payment Ancillary Agreements in order to avoid any breach or default thereunder or the loss of any additional amounts material rights thereunder, including all such consents, approvals or consideration other than ongoing fees, royalties or payments which waivers necessary to validly transfer and assign all such contracts and agreements to the Surviving Company would otherwise be required to pay had (the transactions contemplated by this Agreement not occurred“Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (K2 Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes theretoSchedule 2.12(a), the Company does not have, is not a party to and nor is not it bound by:
(i) any collective bargaining agreements,agreements at the level of the Company;
(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 (excluding "at will" employee relationships) Contract with an employee or individual consultant or salesperson or any consulting or sales agreement, contract agreement or commitment Contract under which any firm or other organization provides services to the Company,;
(v) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (or upon the occurrence of any subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Agreement (or upon the occurrence of any subsequent events);
(vi) any lease of personal property having a value individually in excess of $25,000,20,000 individually or $50,000 in the aggregate;
(vii) any agreement of indemnification or guaranty,guarantee;
(viii) 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,
(ix) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,20,000 individually or $50,000 in the aggregate;
(xix) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside other than the ordinary course sale of inventory in the Company's business,Ordinary Course of Business;
(xix) 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,;
(xi) any purchase order or Contract for the purchase of raw materials or finished products involving $250,000 or more per order or entered into outside of the Ordinary Course of Business;
(xii) any construction Contracts;
(xiii) any distribution, joint marketing or development agreement;
(xiv) 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 agreement, contract right to use or commitment acquire source-code; or
(xv) any other Contract that involves $25,000 100,000 or more individually or is not cancelable without penalty within thirty three (303) daysmonths.
(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 Contract required to be set forth on SCHEDULE 2.13(aSchedule 2.12(a) or SCHEDULE 2.12(b) Schedule 2.25 (any such agreement, contract or commitmentContract, a "CONTRACT"“Key Contract”). Each Key Contract is in full force and effect and is not subject and, except as otherwise disclosed in Schedule 2.12(b), to any material default thereunderthe Knowledge of the Class A Stockholders, of which the Company has knowledge, by any no party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurreda Key Contract is in default thereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Cypress Semiconductor Corp /De/)
Agreements, Contracts and Commitments. (a) Except for (i) the Restricted Agreements and (ii) as set forth on SCHEDULE 2.13(ain Section 2.14(a) or as specifically set forth in of the Disclosure Schedule, neither the Company Financials nor the Subsidiary is a party to, nor is either bound by any of the following (including together with the notes thereto)Restricted Agreements, the Company does not have, is not a party to and is not bound by:“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 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 (excluding "at will" employee relationships) and any non-compete, confidentiality, Intellectual Property ownership, trade secrets or similar agreement with an employee or individual consultant consultant, contractor, or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,salesperson;
(vii) any agreement or planplan (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 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 by this Agreement,;
(viiii) any lease of personal property having a value individually in excess of $25,000,50,000 individually or $100,000 in the aggregate;
(viiiv) any lease, license, sublease or occupancy right with respect to real property;
(v) any agreement of indemnification or guaranty,, but excluding agreements of indemnification or guaranty with respect to the infringement of the Intellectual Property rights of third parties or for 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;
(viii) 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,
(ixvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or $100,000 in the aggregate;
(xvii) any agreement, contract or commitment relating to the disposition or acquisition of assets assets, securities or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xiviii) 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;
(ix) any purchase order or contract or other commitment obligating the Company or the Subsidiary to purchase or sell materials, including guarantiessupplies, 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 benefit of 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 Company Products to end-users (in each case, pursuant to written agreements that have been entered into in the ordinary course of business), and (ii) 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 annual license fee or support/maintenance payments; or
(xix) any other agreement, contract or commitment not identified above (A) that involves the payment 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) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be Except as set forth on SCHEDULE 2.13(aSection 2.14(b) or SCHEDULE 2.12(b) (any such agreementof the Disclosure Schedule, contract or commitment, a "CONTRACT"). Each each Material Contract is a legal, valid and binding obligation of the Company or the Subsidiary, as applicable, enforceable against the Company or the Subsidiary, as applicable, and, to the Knowledge of the Company, any other party to such Material Contract, in accordance with its terms (except as enforceability may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance and other similar laws affecting creditors’ rights generally and by general principles of equity) and in full force and effect and is not subject to any material default thereunder, of which effect. Neither the Company has knowledgenor the Subsidiary, by any party obligated as applicable, and, to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all Knowledge of the Company's rights , no other party to such Material Contract is in material breach or default under any Material Contract, and to the Contracts without 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 payment 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 additional amounts or consideration other than ongoing fees, royalties or payments which Material Contract. Neither the Company would otherwise be required nor the Subsidiary is disputing and, to pay had the transactions contemplated by this Agreement not occurredKnowledge 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 with respect to any provision of any Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 2.17 of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not have, is not a party to and is not 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 any officer or director level employee, not terminable by Company on thirty (excluding "30) days notice without liability, except to the extent general principles of wrongful termination may limit Company’s ability to terminate employees at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,;
(vc) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(vi) any lease of personal property having a value individually in excess of $25,000,
(viid) any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business, including any indemnification agreements between Company and any of its officers or directors;
(viiie) 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,;
(ixf) any license, agreement, contract or commitment relating to any Material Company IP Right;
(g) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,50,000 and not cancelable without penalty;
(xh) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(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,;
(xiij) any joint marketing or development agreement;
(k) any distribution agreement (identifying any that contain exclusivity provisions); or
(l) 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 commitment of $25,000 50,000 or more or in the aggregate and is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Merger Agreement (Vaxgen Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in As of the date hereof, neither the Company Financials (including the notes thereto), the Company does not have, nor any of its Subsidiaries is not a party to and is not to, nor are they bound by:
(i) any collective bargaining agreements,Employee Agreement in effect as of the date of this Agreement, other than (A) Company Options and other than standard offer letters that do not contain terms regarding severance, change in control or similar payments or (B) agreements between the Company or any of its ERISA Affiliates and any consultant or contractor relating to the performance of services for the Company or any of its ERISA Affiliates (in either case, the forms of which have previously been provided to Parent);
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, plan (including any stock option planCompany Option Plan, stock appreciation rights plan or stock purchase plan, ) any of the benefits of which will 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 (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 by this Agreement,;
(viiii) any lease of personal property having a value individually providing for payments in excess of $25,000,25,000 individually or $100,000 in the aggregate;
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ixiv) any agreement, contract or commitment relating to capital expenditures and involving future payments after the date hereof in excess of $25,000,25,000 individually or $100,000 in the aggregate;
(xv) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xivi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or money, extension of creditcredit or security interest;
(vii) any pending purchase order or contract for the purchase of materials involving in excess of $25,000 individually or $100,000 in the aggregate;
(viii) any powers of attorney;
(ix) any agreement containing any price protection, including guaranties,“most favored nation” or similar provisions;
(x) any partnership, joint venture, strategic alliance or similar agreement;
(xi) any material Contract to which an Interested Party is a party, other than Contracts relating to the acquisition of equity securities of the Company or relating to an Interested Party’s employment or service relationship with the Company;
(xii) any other dealer, distribution, joint marketing, development agreement, contract sales representative, original equipment manufacturer, value added, remarketer, reseller, or commitment independent software vendor, or other agreement for marketing, sales, provision or distribution of the Company’s products, technology or services and that is material to the Company’s business; or
(xiii) any other Contract, including any service, operating or management agreement or arrangement with respect to any of the Company’s properties (whether leased or owned), that involves in excess of $25,000 or more or 100,000 and is not cancelable without penalty within thirty (30) days.
(b) The Company has and its Subsidiaries are in compliance in all material respects with, and have not received notice prior to the date of this Agreement that they have breached, violated or defaulted underunder any of, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment Contract required to be set forth on SCHEDULE 2.13(aSection 3.14(a) of the Company Disclosure Schedule, nor has there occurred any event or SCHEDULE 2.12(b) (any condition that could reasonably be expected to constitute such agreementa breach, contract violation or commitmentdefault by the Company or its Subsidiaries with the lapse of time, a "CONTRACT")giving of notice or both. Each Contract required to be set forth on Section 3.14(a) of the Company Disclosure Schedule is in full force and effect and is not subject (except to any material default thereunderthe extent that such Contracts are terminated in a manner permitted under Section 5.1(b)(iii)) and, of which to the Company has knowledgeCompany’s Knowledge, by any no third party obligated to the Company or any of its Subsidiaries pursuant thereto. Following the Closing Dateto any such Contract is subject to any default thereunder.
(c) The Company has delivered to Parent true, correct and complete copies of all Contracts listed in Section 3.14(a) of the Company will be permitted to exercise Disclosure Schedule, including all of the Company's rights under the Contracts without the payment of any additional amounts or consideration other than ongoing feesamendments, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredsupplements, exhibits and ancillary agreements thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. Schedule 3.27 lists all leases, contracts, agreements and instruments to which it is a party as of the date hereof and which are in any single case of material importance to the conduct of the business of Bradley (a) true and correct copies of each such document requested by ▇▇▇ ▇▇▇tnership have been previously delivered to the Partnership and a written description of each oral arrangement so listed). Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto)Schedule 3.27, the Company Bradley does not have, is not a party to and is not bound by:
have as of the date hereof (i) any collective bargaining agreements,
(ii) barga▇▇▇▇▇ ▇greements or any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
, (iiiii) any bonus, deferred compensation, pension, profit profit-sharing or retirement plans, programs or any other similar employee benefit plans or arrangements,
, (iviii) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee employee, or individual consultant agreements to pay severance, (iv) any agreement of guarantee or salesperson indemnification running from Bradley to any person or any consulting or sales agreemententity, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement, indenture or oth▇▇ ▇▇▇▇rument for borrowed money and any agreement or plan, including, without limitation, other instrument which contains restrictions with respect to payment of dividends or any stock option plan, stock appreciation rights plan or stock purchase plan, any other distribution in respect of the benefits of which will be increasedConverted Securities or any other outstanding securities, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any lease of personal property having a value individually in excess of $25,000,
(vii) any agreement of indemnification or guaranty,
(viii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Bradley to engage in any line of business or to compete with any person,
, (ix▇▇▇) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
25,000 and involving future payments, (xviii) any amy agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in capital stock of any business enterprise outside the ordinary course of the Company's business,
enterprise, or (xiix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties,
(xii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company made in the ordinary course of business. Except as set forth in Schedule 3.27, Bradley has not breached, violated or defaulted under, or received notice that it nor to Bradley's Knowledge is there any cl▇▇▇ ▇▇ any legal basis for a clai▇ ▇▇▇▇ ▇▇adley has breached, violated or defaulted under, any of the terms or conditions of any agreementagreemen▇, contract ▇▇▇▇ract or commitment required to be set forth on SCHEDULE 2.13(a) in the Schedules or SCHEDULE 2.12(b) (of any such other agreement, contract or commitment, which breach would have a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which Material Adverse Effect on Bradley or the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurredProperties.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) Schedule 3.16, Schedule 3.25(a), Schedule 3.26(b), Schedule 3.26(c), or as specifically set forth in Schedule 3.25(g), neither the Company Financials (including the notes thereto), the Company does not havenor any of its Subsidiaries has, is not a party to and or is not bound by:
(i) any collective bargaining agreements,agreement;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with any current Employee, contractor, consultant or advisor or with any other Employee or former contractor, consultant, or advisor under which the Company or any of its Subsidiaries has any outstanding obligation or liability;
(excluding "at will" iii) any bonus or any other incentive compensation, deferred compensation, severance, salary continuation, pension, profit sharing or retirement plan, or any other employee relationshipsbenefit plan or arrangement;
(iv) any commission and/or sales agreement with an employee or any current Employee, individual consultant or salesperson, or with any other Employee, former individual consultant or former salesperson under which the Company or any consulting of its Subsidiaries has any outstanding liability or sales agreementobligation, contract or commitment under which any a firm or other organization provides commission or sales-based services to the Company,Company or any of its Subsidiaries;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of the Merger or any of the other transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of the Merger or any of the other transactions contemplated by this Agreement,Agreement or the Related Agreements;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $25,000,100,000;
(viiviii) any agreement of indemnification or guaranty,guaranty to any third party (other than agreements for the sale or resale of Company Products entered into in the ordinary course of business which provide indemnification only for patent infringement and which expressly disclaim special, consequential and punitive damages and for which the indemnification liability of the Company and its Subsidiaries in the aggregate is not material);
(viiiix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or in any geographic territory or to compete with any person,Person, or which grants to any Person any exclusivity to any geographic territory, any customer, or any product or service;
(ixx) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000,100,000;
(xxi) any agreement, contract or commitment agreement relating to (A) the acquisition or disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s or any of its Subsidiaries’ business,, in each case involving $100,000 or more or (B) the acquisition or disposition of any interest (including any asset purchase, whether or not in excess of $100,000) in any business enterprise;
(xixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or the extension of credit, including guaranties,guaranties referred to in clause (viii) hereof, other than accounts receivable and accounts payable arising in the ordinary course of business;
(xiixiii) any unpaid or unperformed purchase order or purchase contract (including for services) involving $100,000 or more;
(xiv) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant agreement involving $100,000 or more;
(xv) any agreement pursuant to which the Company or any of its Subsidiaries has granted or may be obligated to grant in the future, to any Person, 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;
(xvi) any sales representative, original equipment manufacturer, value added re-seller, re-marketer or other agreement for distribution of the Company’s or any of its Subsidiaries’ products or services, or the products or services of any other Person, other than re-seller agreements that have generated less than $100,000 in sales over the last twelve (12) month period;
(xvii) any agreement pursuant to which the Company has advanced or loaned any amount to any Stockholder of the Company or any Employee, or consultant thereof, other than business travel advances in the ordinary course of business consistent with past practice; or
(xviii) any other agreement, contract or commitment agreement that involves $25,000 100,000 or more or is not cancelable without penalty within thirty ninety (3090) days.
(b) . Each Contract is in full force and effect. The Company has and each of its Subsidiaries are in material compliance with and have not materially breached, violated or defaulted under, or received written notice that it has they have breached, violated or defaulted under, any of the terms or conditions of any agreementContract, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which nor does the Company has knowledgehave knowledge of any event or occurrence that would constitute such a breach, by any party obligated to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all of the Company's rights under the Contracts violation or default (with or without the payment lapse of any additional amounts time, giving of notice or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredboth).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto2.12(a), the Company does not have, is not a party to and nor is not 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 written employment or consulting agreement, contract or commitment (excluding "at will" employee employment relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company, and any other such agreement, contract or commitment involving payments in excess of $10,000 per annum,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viiviii) any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment relating to capital expenditures and involving future payments required to be made by the Company after the date of this Agreement in excess of $25,000,
(x) any agreement, contract or commitment relating to the disposition or acquisition by the Company of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xi) 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 guarantiesguaranties referred to in clause (viii) hereof, other than advances to employees for travel and business expenses in the ordinary course of business consistent with past practices,
(xii) any purchase order or contract for the purchase by the Company of raw materials involving $25,000 or more after the date of this Agreement,
(xiii) any construction contracts,
(xiv) any distribution, joint marketing or development agreement,
(xv) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within upon notice of thirty (30) daysdays or less.
(b) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in SCHEDULE 2.12(b), the Company has is not breachedin material breach, violated violation or defaulted default under, or received notice that it has breachedis in material breach, violated violation or defaulted default (except for notices relating to breaches, violations or defaults that have been cured or corrected in all material respects) under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) 2.12(a), SCHEDULE 2.11(e), SCHEDULE 2.11(g), or SCHEDULE 2.12(b2.11(h) (any each such agreement, contract or commitmentcommitment listed on SCHEDULE 2.12(a), SCHEDULE 2.11(e), SCHEDULE 2.11(g) and SCHEDULE 2.11(h), a "CONTRACT"). Each Contract is in full force and effect and and, except as otherwise disclosed in SCHEDULE 2.12(b), is not subject to any material default thereunder, thereunder of which the Company has knowledge, knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Netscape Communications Corp)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes theretoSchedule 2.17(a), the Company does not have, is not a party to and to, nor is not it bound by:
(i) any collective bargaining agreements,agreement 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 obligations,shareholder 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 arrangements,agreement 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with an individual employee, consultant or salesperson, or with a firm or other organization provides services to the Company,organization;
(vvii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional or subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viviii) any fidelity or surety bond or completion bond;
(ix) any lease of personal property having a value individually in excess of $25,000,50,000 individually or $100,000 in the aggregate;
(vii) any agreement of indemnification or guaranty,
(viii) 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,
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or $100,000 in the aggregate;
(xxi) 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,business consistent with past practices;
(xixii) 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,;
(xiixiii) any purchase order or contract for the purchase of materials involving in excess of $50,000 individually or $100,000 in the aggregate;
(xiv) any dealer, 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 sales representative, original equipment manufacturer, value added, remarketer, reseller, or 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 $25,000 50,000 individually or $100,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) The 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, violated or defaulted under, or 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, under any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(ain Schedule 2.17(a) or SCHEDULE 2.12(b) Schedule 2.16 (any such agreement, contract or commitment, a "CONTRACTListed Contract"). Each Listed Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, thereunder by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Merger Agreement (Avocent Corp)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(ain ------------------------------------- Schedule 2.12(a) or as specifically set forth in of the Company Financials (including the notes thereto)KnowledgeWell Disclosure Letter, the Company KnowledgeWell does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) agreement with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any agreement with a firm or other organization provides services to the Companyorganization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000US$5,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company KnowledgeWell or its present and future affiliated entities to engage in any line of business or to compete with any person,
(ixx) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000US$20,000,
(xxi) any agreement, contract or commitment agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the CompanyKnowledgeWell's business,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract for the purchase of raw materials involving US$20,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which KnowledgeWell has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code, or
(xvii) any other agreement, contract or commitment agreement that involves $25,000 US$20,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes theretoSchedule ------------------------------------- 2.12(a), the Company does not have, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00010,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) 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,
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000,
(xxi) 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,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire, contingent or otherwise, source-code, or
(xvii) any other agreement, contract or commitment that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) . The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be which it is bound (including those set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(bin any of the Company Schedules) (any such agreement, contract or commitment, a "CONTRACTContract")) in any manner which could reasonably be expected to have a Material Adverse Effect. Each Contract is in full force and effect and is not subject to any material default thereunder, thereunder of which the Company has knowledge, knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth described in the Company Financials (including the notes thereto)------------------------------------- Disclosure Schedule Section 2.14, the Company does not havehave continuing obligations under, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(vii) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any lease of personal property having a value annual lease payments individually in excess of $25,000,50,000;
(vii) any agreement of indemnification or guaranty,
(viiiiv) 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 person,Person;
(ixv) any agreement, contract or commitment relating to capital expenditures and involving future payments individually or in the aggregate in excess of $25,000,50,000;
(xvi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xivii) 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,;
(xiiviii) any purchase order or contract for the purchase of raw materials involving $50,000 or more;
(ix) any material distribution, joint marketing or development agreement;
(x) any agreement, contract, commitment or loan 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
(xi) any other agreement, contract or commitment (1) that involves $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) The Company has not breachedAccurate and complete copies (together with all ancillary documents thereto, violated or defaulted underincluding any amendments, or received notice that it has breached, violated or defaulted under, any consents for alterations and documents regarding variations) of the terms or conditions of any agreement, contract or commitment required to be items set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(bin Disclosure Schedule Section 2.14 in response to Section 2.14(a) (any such agreementcollectively, contract 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 commitment, a "CONTRACT"). Each Contract is other equitable remedies) and in full force and effect and effect, (ii) the Company is not subject to any in material default thereunder, in the performance of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all of the Company's rights under the Contracts without its obligations thereunder or in the payment of any additional amounts principal of or consideration interest on any indebtedness for borrowed money, (iii) to the knowledge of either the Selling Shareholder or the Company, no material default has occurred which (whether with or without notice, lapse of time, or both, or the happening or the occurrence of any other than ongoing feesevent) would constitute an event of default thereunder or a breach thereunder, royalties or payments which the Company would otherwise be required to pay had (iv) upon consummation of the transactions contemplated by this Agreement not occurredand the Related Agreements, without providing notice to or obtaining approval, consent or waiver from any Person, each will continue in full force and effect without material penalty or other material adverse consequence and shall be unaffected by such transactions, and (v) no Commitment has been materially amended or otherwise affected by any writing signed by the parties thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 2.14 of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not have, is not a party to and to, nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson salesperson, or any consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to the Company,organization;
(vb) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,Contemplated Transactions;
(vic) any fidelity or surety bond or completion bond;
(d) any lease of personal or movable property having a value individually in excess of $25,000,50,000 individually or $100,000 in the aggregate;
(viie) any agreement of indemnification or guaranty,;
(viii) 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,
(ixf) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or $100,000 in the aggregate;
(xg) 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,;
(xih) 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,;
(xiii) any purchase order or contract for the purchase of materials involving in excess of $50,000 individually or $100,000 in the aggregate;
(j) any agreement 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;
(k) any dealer, distribution, joint 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
(n) any other agreement, contract or commitment that (i) involves the 5 largest customers of the Company 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 without penalty within thirty (30) days.
(b) The . Except as set forth in Section 2.14 of the Company has Disclosure Schedule, the 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 of any agreement, contract parties to such agreements to terminate such agreements or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing Date, the Company will be permitted to exercise all of the Company's rights under the Contracts without require the payment of any additional amounts or consideration other than ongoing fees, royalties or payments amounts which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredpay.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto3.12(a), the Company Parent does not have, is not a party to and is 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the CompanyParent,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00050,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Parent to engage in any line of business or to compete with any person,
(ixx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00050,000,
(xxi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the CompanyParent's business,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract for the purchase of raw materials involving $50,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which Parent has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvii) any other agreement, contract or commitment that involves $25,000 50,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in SCHEDULE 3.12(b), Parent has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any End-User License or any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a3.12(a) or SCHEDULE 2.12(b3.12(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 3.12(b), is not subject to any material default thereunder, of which the Company Parent has knowledge, by any party obligated to the Company a Parent pursuant thereto. Following the Closing DateEffective Time, the Company Parent will be permitted to exercise all of the Companysuch Parent's rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company Parent would otherwise be required to pay had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Citadel Technology Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) contemplated by this Agreement or as specifically set forth in Schedule 3.15(a) of the Company Financials (including the notes thereto)Disclosure Schedule, neither the Company does not have, nor any of the Company Subsidiaries is not a party to and is not or bound byby any of the following, which are subsisting or outstanding or in respect of which the Company or any of the Company Subsidiaries has any current or potential future Liability:
(i) any collective bargaining agreements,Contract that was entered into outside the Ordinary Course of Business;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,collective bargaining agreement;
(iii) any bonus, deferred compensation, pension, profit sharing Contract that contains any redundancy or retirement plans, severance pay or any other employee benefit plans or arrangements,creates post-employment Liabilities;
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement Contract or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(v) any fidelity or surety bond or completion bond;
(vi) any Contract or group of related Contracts for the lease of personal property having a value individually in excess of $25,000,5,000 individually or $25,000 in the aggregate;
(vii) any agreement lease of indemnification or guaranty,real property;
(viii) any agreement, contract Contract of indemnification or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,guarantee;
(ix) any agreement, contract Contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,5,000;
(x) any agreement, contract Contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course Ordinary Course of the Company's business,Business;
(xi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements agreements, or other agreements or instruments relating to the borrowing of money or money, extension of credit, including guaranties,or creation of Indebtedness;
(xii) any other agreementpurchase order or Contract for the purchase of materials involving payments in excess of $10,000 individually or $50,000 in the aggregate;
(xiii) any construction Contracts;
(xiv) any partnership, contract dealer, distribution, agency, joint marketing, joint venture, strategic alliance, affiliate, development Contract or similar Contract or any Contract which is or contains a power of attorney given by the Company or any of the Company Subsidiaries;
(xv) any Contract or commitment to alter the Company’s interest in any corporation, association, joint venture, partnership or Entity in which the Company directly or indirectly holds any interest;
(xvi) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other Contract for manufacturing, use or distribution of the products, technology, or services of the Company or any of the Company Subsidiaries;
(xvii) any nondisclosure, confidentiality, or similar Contract, other than those entered into with any actual or prospective customer, distributor, or vendor in the Ordinary Course of Business;
(xviii) any Contracts terminable by the counterparty thereto upon an assignment or change in control of the Company or any of the Company Subsidiaries or requiring notification to counterparties in the event of assignment or change in control of the Company or any of the Company Subsidiaries;
(xix) any Contract pursuant to which any exclusive licenses or rights (including, without limitation, covenants not to ▇▇▇ or non-assertion provisions) in or to the Company Intellectual Property are granted by the Company or any of the Company Subsidiaries;
(xx) any Contract pursuant to which any exclusive licenses or rights to Intellectual Property Rights are granted to the Company or any of the Company Subsidiaries;
(xxi) other than nondisclosure and confidentiality Contracts entered into in the Ordinary Course of Business and containing standard terms and conditions, all licenses, sublicenses and other Contracts to which the Company or any of the Company Subsidiaries is a party and pursuant to which the Company or any of its Subsidiaries acquired or is authorized to use any Technology or Intellectual Property Rights of a third party, other than Open Source Materials (and excluding non exclusive licenses to Intellectual Property Rights owned by third parties granted to the Company or any of the Company Subsidiaries in the Ordinary Course of Business, where the license is merely incidental to the transaction contemplated in such Contract, the commercial purpose of which is something other than such license, such as a sales or marketing Contract that includes an incidental license to use the third party’s Trademarks in advertising and selling the third party’s products or otherwise performing under such Contract);
(xxii) any Contract, other than with employees of the Company or any of the Company Subsidiaries, providing for the development of any Company Product or other Technology, independently or jointly, by or for the Company and the Company Subsidiaries;
(xxiii) 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 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 the Company Subsidiaries to sell, distribute or manufacture any Company Product or to purchase or otherwise obtain any software, components, parts or services;
(xxiv) any Contract with any Governmental Entity;
(xxv) any agreement or arrangement to which the following provisions of the Companies Act apply: section 317, section 320, and/or section 330;
(xxvi) any settlement or litigation “standstill” agreement; or
(xxvii) any other Contract or commitment not otherwise disclosed in Schedule 3.15(a) of the Company Disclosure Schedule that involves payments in excess of $5,000 individually or $25,000 or more or is not cancelable without penalty within thirty (30) days.in the aggregate;
(b) True and complete copies of each Contract set forth (or required to be set forth) in Schedule 3.15 of the Company Disclosure Schedule, each a “Material Contract” and collectively, the “Material Contracts”) have been delivered or made available to Parent. Each Material Contract is a valid and binding agreement of the Company or a Company Subsidiary, as applicable, is enforceable against the Company or a Company Subsidiary and each other party thereto in accordance with its terms, and is in full force and effect with respect to the Company or the Company Subsidiary. The Company has and each of the Company Subsidiaries, as applicable, are in compliance with and have not breached, violated violated, or defaulted under, or received written notice or notice via electronic mail that it has breached, violated violated, or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(a) or SCHEDULE 2.12(b) (any such agreement, contract or commitment, a "CONTRACT")Material Contract. Each Contract is in full force and effect and is not subject to any material default thereunder, of which the Company has knowledge, by any No party obligated to the Company or a Company Subsidiary pursuant thereto. Following 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 Closing Datelapse 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 party.
(c) Schedule 3.15(c) of the Company will be permitted to exercise all Disclosure Schedule includes a list of any Contracts that contain uncapped indemnification obligations for any current or potential future Liability of the Company's rights under the Contracts without the payment Company or any of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurredSubsidiaries.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in for this Agreement, neither the Company Financials (including the notes thereto), the Company does not have, nor any of its Subsidiaries is not a party to and is not or bound byby any of the following Contracts:
(i) (A) any Contract to grant any severance, change of control payments, retention bonus, equity acceleration, or termination pay (in cash or otherwise, other than as required by applicable Law) or similar payment or benefit on account of the consummation of the Merger (except in accordance with applicable Law by paying (1) the statutory minimum notice or (2) any required severance or other termination pay, as applicable), (B) any employment agreement, offer letter, or independent contractor agreement with any current Company Service Provider that is not immediately terminable at-will by the Company without advance notice, severance, or other similar cost or Liability, (C) any separation agreement or settlement agreement with any Company Service Provider or other Person, under which the Company has any current actual or potential Liability, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity, (D) any Contract (x) to provide any sign-on, referral, or retention bonus under which the Company has any current actual or potential Liability or (y) subject to any clawback policy or provision or (E) any collective bargaining agreements,agreement or other Contract with any labor union;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company,
(v) any agreement Contract or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will 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 value of any of the benefits of which will shall be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any Lease Agreement or any lease of any personal property having a value individually involving future payments in any amount in excess of $25,000,100,000 in fiscal year 2021 or any other future fiscal year;
(viiiv) any agreement of indemnification or guaranty,
(viii) 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,
(ix) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in any amount in excess of $25,000,600,000 in fiscal year 2021 or any other future fiscal year;
(xv) any agreement, contract or commitment Contract relating to the disposition or acquisition of ownership of assets or any interest in any business enterprise outside the ordinary course Ordinary Course of the Company's business,Business;
(xivi) 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 other Indebtedness in any amount in excess of $1,000,000;
(vii) any purchase order or Contract or group of related Contracts with the same vendor or supplier for the purchase of tangible items of equipment or related services in an amount payable by the Company or its Subsidiaries in excess of $600,000 in the aggregate in any fiscal year;
(viii) any Inbound License that is required to be listed on Section 3.12(d)(i) of the Disclosure Schedule;
(ix) any Outbound License that is required to be listed on Section 3.12(d)(ii) of the Disclosure Schedule;
(x) any Contract with a Top Supplier;
(xi) any Contract with a Top Customer;
(xii) any Contract with a Top Reseller;
(xiii) any Contract providing for “offshore” or outsourced development of any material items of Technology by, for or on behalf of the Company or any of its Subsidiaries;
(xiv) any Contract containing a provision that limits, restricts or impairs the Company’s or any of its Subsidiaries’ ability to operate in any geography of the world or with any Person, including those Contracts (A) that contain covenants of non-competition, rights of first refusal or negotiation, non-solicitation of customers, and exclusive dealings arrangements, and any similar obligations of any of the foregoing, (B) under which the Company or any of its Subsidiaries is restricted from hiring or soliciting potential employees, consultants or independent contractors and which restriction on hiring or soliciting potential employees, consultants or independent contractors would reasonably be expected to be material to the Company and its Subsidiaries’ ability to operate its business as currently conducted or (C) apply to or purport to apply to Company’s or any of its Subsidiaries’ Affiliates;
(xv) any Contract with federal, state, city, county, parish, municipal or other agreementGovernmental Entities;
(xvi) 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 do not materially deviate from the terms set forth in the form of reseller agreement made available to Parent);
(xvii) (A) any legal partnership or joint venture Contract or (B) any Contract that involves a sharing of revenues, profits, cash flows or losses with other Persons;
(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 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;
(xx) any Contract pursuant to which the Company or any of its Subsidiaries have 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;
(xxi) any agreement of indemnification with officers or directors of the Company;
(xxii) 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;
(xxiii) any Contract or other arrangement to settle any Legal Proceeding or to settle any threatened Legal Proceeding in each case, that involves material outstanding obligations of the Company or any Subsidiary of the Company; and
(xxiv) any other Contract or group of related Contracts with a single counterparty that have not been otherwise disclosed pursuant to this Section 3.13 that involves an anticipated amount payable by or to the Company or its Subsidiaries in excess of $25,000 600,000 in the aggregate in fiscal year 2021 or more or is not cancelable without penalty within thirty (30) daysany other future fiscal year.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any made available correct and complete copies of the terms or conditions of any agreement, contract or commitment (1) each Contract required to be set forth on SCHEDULE 2.13(adisclosed pursuant to Sections 3.2, 3.13 and 3.20(a) or SCHEDULE 2.12(btogether with any and all material amendments and supplements thereto and “side letters” and similar documentation relating thereto, and (2) summaries of each oral Material Contract. For the purposes of this Agreement, each of the foregoing Contracts referenced in this Section 3.13(b) as well as any Contracts entered into subsequent to the Agreement Date and prior to the Closing Date that would have been required to be disclosed pursuant to Sections 3.2, 3.13 and 3.20(a) if such Contract had been in effect as of the Closing Date, shall each be a “Material Contract” and collectively are 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 has not received any such agreementwritten notice alleging it to be in default in respect of, contract or commitment, a "CONTRACT")any Material Contract. Each Contract of the Material Contracts is in full force and effect and is not effect, subject only to any material default thereunderthe effect, if any, of which the Enforcement Exceptions. There exists (x) no default or event of default under any Material Contract by the Company has knowledgeor any of its Subsidiaries or, by to the Knowledge of the Company, any other party obligated thereto, and (y) no event, occurrence, condition or act, with respect to the Company pursuant thereto. Following or any of its Subsidiaries, or to the Closing Date, the Company will be permitted to exercise all Knowledge of the Company's rights , with respect to any other party to a Material Contract, that, with the giving of notice, the lapse of time, would reasonably be expected to (i) become a default or event of default under any Material Contract or (ii) give any third party (A) the Contracts without right to declare a default or exercise any remedy under any Material Contract, (B) the payment 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 additional amounts material obligation of the Company or consideration any of its Subsidiaries under any Material Contract or (D) the right to cancel (other than ongoing feesat the expiration of the term of any Contract in accordance with its terms), royalties terminate or payments which modify any Material Contract. Neither the Company would otherwise be required nor any of its Subsidiaries has received any written notice to pay had the transactions contemplated by this Agreement not occurredcancel or modify any Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Twilio Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto------------------------------------- Schedule 2.17(a), the Company does not have, is not a party to and nor is not it bound by:
(i) any collective bargaining agreements,
(ii) any agreements employment or arrangements consulting agreement, contract or commitment with any officer, director, employee or member of the Company's Board of Directors, other than those that contain any severance pay or post-employment liabilities or obligationsare terminable by the Company,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) agreement with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other organization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00010,000,
(viiviii) any agreement of indemnification or guaranty,
(viiiix) 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,
(ixx) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000,
(xxi) any agreement, contract or commitment agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xixii) 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 guarantiesguaranties referred to in clause (viii) hereof,
(xiixiii) any purchase order or contract involving $25,000 or more,
(xiv) any construction contracts,
(xv) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant agreement,
(xvi) any agreement pursuant to which the Company has granted or may be obligated to grant in the future, to any party a source-code license or option or other right to use or acquire source-code, including any agreements which provide for source code escrow arrangements,
(xvii) 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,
(xviii) 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, or
(xix) any other agreement, contract or commitment agreement that involves $25,000 or more or is not cancelable without penalty within thirty ninety (3090) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.17(b), the Company has not breached, violated or defaulted underunder in any material respect, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.13(aSchedule 2.17(a), Schedule 2.14(b) or SCHEDULE 2.12(bSchedule 2.14(c) (any such agreement, contract or commitment, a "CONTRACTContract"). Each Contract is in full force and -------- effect and and, except as otherwise disclosed in Schedule 2.17(b), is not subject to any material default thereunder, thereunder of which the Company has knowledge, knowledge by any party obligated to the Company pursuant thereto. Following the Closing Date, 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 by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Inktomi Corp)
Agreements, Contracts and Commitments. (a) Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in Section 3.12 of the Company Financials (including the notes thereto)Disclosure Schedule, the Company does not havehave continuing obligations under, is not a party to and nor is not 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 (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company,organization;
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,, except as provided herein;
(vif) any fidelity or surety bond;
(g) any lease of personal property having a value annual lease payments individually in excess of $25,000,;
(viih) any agreement of indemnification or guaranty,guaranty other than in the ordinary course of business;
(viiii) 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,;
(ixj) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,;
(xk) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xil) 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,
guaranties referred to in clause (xiiviii) any other agreement, contract or commitment that involves hereof in an individual amount in excess of $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) 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 required to be set forth on SCHEDULE 2.13(ain Schedule 3.12 of the Company Disclosure Schedule, or (ii) any other material agreement, contract or SCHEDULE 2.12(b) commitment to which it is a party or by which it is bound (any such agreement, contract or commitment, a "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 material default thereunder, thereunder of which the Company has knowledge, is aware by any party obligated to the Company pursuant thereto, other than late payments, nonpayment. Following The Company has obtained, or will obtain prior to the Closing Date, the Company will be permitted all necessary consents, waivers and approvals of parties 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 Contract as are required to pay had in connection with the 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 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 not occurredis disclosed in Schedule 3.12 of the Company Disclosure Schedule. Neither the execution of this Agreement nor consummation of the transactions contemplated hereby will cause any default or breach under any Contract, including without limitation any key man clause in any Contract, or the acceleration of any payment obligation of the Company.
Appears in 1 contract