Agreements, Contracts and Commitments. (a) Part 2.12(a) of the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company is a party or by which the Company or any of its assets is bound: (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; (xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations; (xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements; (xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company; (xv) 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; (xvi) any fidelity or surety bond or completion bond; (xvii) any lease of personal property having a value individually in excess of $25,000; (xviii) any agreement of indemnification or guaranty; (xix) 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; (xx) 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 Business; (xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof; (xxiii) 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tibco Software Inc)
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept as set forth on Section 2.15(a) of the Company Disclosure Letter lists the following written or oral contractsSchedule, agreements, commitments and other arrangements to which the Company does not have, is not a party or by which the Company or any of its assets to and is boundnot bound by:
(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);
(xia) any collective bargaining agreements;
(xiib) 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 obligationsmember of the Company's Board of Directors;
(xiiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xivd) any employment or consulting agreement, contract or commitment 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;
(xve) 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;
(xvif) any fidelity or surety bond or completion bond;
(xviig) any lease (whether of real or personal property property) having a value individually in excess of $25,00010,000;
(xviiih) 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;
(xixi) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(xxj) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,00010,000;
(xxik) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Businessenterprise;
(xxiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiih) hereof;
(xxiiim) any purchase order or contract for involving the purchase expenditure by the Company of raw materials involving $10,000 or moremore for the Company's products or $10,000 or more or otherwise;
(xxivn) any construction contracts;
(o) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or development merchant agreement;
(xxvp) any agreement pursuant to which the Company has granted or may be obligated to grant in the future, to any party, party a source-source code license or option or other right to use or acquire source-source code,, including any agreements which provide for source code escrow arrangements;
(xxviq) 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 developed and/or delivered advanced or has received funds from loaned any Governmental Entity amount to develop and/or deliver any Intellectual Propertyshareholder 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
(xxviit) 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) The Company has delivered to Parent . Except for such alleged breaches, violations and defaults, and events that would constitute a correct and complete copy breach, violation or default with the lapse of each written agreement (time, giving of notice, or both, as amended to date) listed are all noted in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(bSection 2.15(b) of the Disclosure Schedule, the Company Disclosure Letter and a written summary setting forth has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms and or conditions of each oral any agreement, contract or commitment required to be set forth on Section 2.15(a) of the Disclosure Schedule (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is a valid and binding agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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, except as otherwise disclosed in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(cSection 2.15(b) of the Company Disclosure LetterSchedule, following the Effective Time, the Company will be permitted is not subject to exercise all any default thereunder of the Company's rights under such agreements 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 has actual knowledge by any party obligated to paythe Company pursuant thereto. True and complete copies of each such Contract have been delivered to the Purchaser.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept as set forth on Section 2.14(a) of the Disclosure Letter, the Company Disclosure Letter lists the following written does not have, or oral contractsis not bound by:
(i) any contract, agreements, commitments and other arrangements license or agreement to which the Company is a party (A) with respect to Company Intellectual Property licensed or by transferred to any third party or (B) pursuant to which the Company a third party has licensed or transferred any of its assets is bound:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on Intellectual Property to the Company, with a value or cost in excess of $5,000;
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xviii) 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;
(xviiv) any fidelity or surety bond or completion bond;
(xviiv) any lease of personal property having a value individually with fixed annual rental payments in excess of $25,0005,000;
(xviiivi) any contract, license or agreement between the Company and any third party wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, hold harmless or otherwise assume or incur any obligation or liability with respect to the infringement or misappropriation by the Company or such third party of indemnification or guarantythe Intellectual Property of any third party;
(xixvii) 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;
(xxviii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,0005,000;
(xxiix) 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 Businessthe Company's business;
(xxiix) 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 referred to in clause (xviii) hereof;
(xxiiixi) any purchase order or contract for the purchase of raw materials involving $10,000 5,000 or more;
(xxivxii) any construction contracts;
(xiii) 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
(xxviixiv) 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 delivered to Parent a correct and complete copy of each written agreement (Except as amended to date) listed disclosed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(bSection 2.14(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as set forth in Part 2.12(b) of the Company Disclosure Letter, the Company is in compliance with respect and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to each which it is a party or by which it is bound (any such agreement: (A) the agreement, with respect to contract, license or commitment, a "Contract"), and the Company is not aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect, and, to the knowledge of the Company's and , except as otherwise disclosed in Section 2.14(b) of the Principal Stockholders' KnowledgeDisclosure Letter, all other parties thereto, is legal, valid, binding, enforceableto each Contract are in compliance with, and in full force and effect in all respects; (B) neither the have not breached any term of, such Contract. The Company nor, has obtained or will obtain prior to the Company's Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger or to remain in effect without modification after 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the CompanyClosing. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following Following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.
Appears in 1 contract
Sources: Merger Agreement (Tut Systems Inc)
Agreements, Contracts and Commitments. Except as shown on Schedule 3.11 or any other Schedule delivered by CPI hereunder, CPI is not a party to or liable in connection with and has not made or granted any oral or written:
(a) Part 2.12(aemployment 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 Company Disclosure Letter lists 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 following written aggregate;
(e) agreement for the future sale by CPI of any materials, equipment, services or oral contractssupplies in an amount in excess of $5,000 in any instance or $25,000 in the aggregate;
(f) insurance or indemnity contract, agreements, commitments bank account and other arrangements depositary arrangement (including the names of persons authorized to which 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 Company is a party or by which the Company or sale of any of its assets is bound: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 agreement under which the consequences of contracts, agreements or other arrangements imposing a default non-competition, non-solicitation or termination could have a Material Adverse Effect similar obligation on the Company;CPI; and
(iij) any other material agreement concerning a partnership whether or joint venture;
(iii) not in the ordinary course of business. No third party has given notice to CPI of any agreement claim, dispute or controversy with respect to any Company Stockholder of the contracts listed on Schedule 3.11, nor has CPI or 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 stockholder's affiliates (other than the Company) or with any affiliate of the Company;
(iv) any advertising servicescontracts, 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 andnor, to the Company's 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 Principal Stockholders' Knowledge, all other parties thereto, is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, to the Company's or the Principal Stockholders' Knowledge, any other Party that CPI 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment default of any additional amounts or consideration other than ongoing fees, royalties or payments of its obligations thereunder. CPI enjoys peaceful and undisturbed possession under all leases under which the Company would otherwise be required to payit operates.
Appears in 1 contract
Sources: Asset Purchase Agreement (Applied Science & Technology Inc)
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept as set forth in Section 2.16 and Section 2.2(b) of the Company Disclosure Letter lists the following written or oral contractsSchedules, agreements, commitments and other arrangements to which neither the Company nor any of its subsidiaries is a party to or by which the Company or any of its assets is boundbound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiva) any employment or consulting agreement, contract or commitment with an any officer or director level employee or individual consultant or salesperson member of the Company's Board of Directors, other than those that are terminable by the Company 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 to the Companyfinancial obligation;
(xvb) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviiic) any agreement of indemnification or guarantyguaranty not entered into in the ordinary course of business other than indemnification agreements between the Company or any of its subsidiaries and any of its officers or directors;
(xixd) any agreement, contract or commitment 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 personperson or granting any exclusive distribution rights;
(xxe) any agreement, contract or commitment relating to capital expenditures and involving future payments currently in excess of $25,000;
(xxi) any agreement, contract or commitment force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Business;enterprise; or
(xxiif) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxiv) any distribution, material joint marketing or development agreement;
. Neither the Company nor any of its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (xxv) as defined herein), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any agreement pursuant of the material terms or conditions of any of the agreements, contracts or commitments to which the Company has granted or may grant any of its subsidiaries is a party or by which it is bound of the type described in the future, to clauses (a) through (f) above (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 such agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30commitment, a "COMPANY CONTRACT") days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the a manner as would permit any other party to cancel or terminate any such Company Disclosure Letter (collectivelyContract, all such agreements are referred or would permit any other party to as the "Contracts"). Except as set forth in Part 2.12(b) of the Company Disclosure Letterseek damages, with respect which would be reasonably likely to each such agreement: (A) the agreement, with respect to the Company and, be material to the Company's and the Principal Stockholders' Knowledge, all other parties thereto, is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cardiogenesis Corp)
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept as set forth in Section 3.15(a) of the Company Disclosure Letter lists (specifying the following written or oral contractsappropriate subparagraph), agreements, commitments and other arrangements to which the Company is not a party or to, nor is it bound by which the Company or any of its assets is bound:
the following (each, a “Material Contract”): (i) any Employment Agreement other than any agreement under which the consequences of a default or offer letter that is terminable at-will, without prior notice or penalty, including severance or termination could have a Material Adverse Effect on the Company;
payments; (ii) any agreement concerning a partnership agreement, contract or joint venture;
commitment to grant any severance or termination pay or benefits (in cash or otherwise) to any Employee; (iii) any settlement or conciliation agreement with any Company Stockholder or any of such stockholder's affiliates (Employees, other than the Companysettlement agreements for cash only (which has been paid) or with any affiliate of the Company;
and do not exceed $25,000; (iv) any advertising servicescollective bargaining agreements, e-commerce labor union Contracts (including any Contract or agreement with any works council, trade union, or other agreement involving the promotion of products and services of third parties by the Company;
labor-relations entity) or similar Contract (each a “Labor Agreement”); (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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
; (xvivi) any fidelity or surety bond or completion bond;
; (xviivii) any lease of personal property or equipment having a value individually in excess of $25,000;
50,000 individually or in the aggregate; (xviiiviii) any agreement of indemnification or guaranty;
(xix) any agreement, contract but excluding agreements of indemnification or commitment containing any covenant limiting guaranty with respect to the freedom infringement by the Company Products of the Company to engage Intellectual Property Rights of third parties that are contained in any line the Company’s written agreements with its customers that have been entered into in the ordinary course of business or to compete with any person;
business; (xxix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000;
50,000 individually or in the aggregate; (xxix) 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 Business;
the Company’s business; (xxiixi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause ; (xviii) hereof;
(xxiiixii) any purchase order order, contract or contract for other commitment obligating the Company to purchase materials or services at a cost in excess of raw materials involving $10,000 50,000 individually or more;
in the aggregate; (xxiv) any distribution, joint marketing or development agreement;
(xxvxiii) any agreement pursuant to which set forth in Section 3.11 of 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,;
Disclosure Letter; (xxvixiv) 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 delivered to Parent providing a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as set forth in Part 2.12(b) of the Company Disclosure Letter, customer 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.refund rights;
Appears in 1 contract
Sources: Unit Purchase Agreement (Yext, Inc.)
Agreements, Contracts and Commitments. (a) Part Section 2.12(a) of the Company Disclosure Letter lists Schedule sets forth all contracts that are material to the following written business or oral contracts, agreements, commitments and other arrangements to which operations of the Company (including its subsidiaries) (collectively, the “Material Contracts”). The Company is not required to list in Section 2.12(a) of the Company Schedule any Contract listed in Section 2.11(n) of the Company Schedule. Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xviiii) any lease of real or personal property having a value individually involving future payments in excess of $25,000, other than as set forth in Section 2.10(a) of the Company Schedule;
(xviiiiii) any agreement of indemnification indemnification, warranty, guaranty or guarantysuretyship or otherwise obligating the Company or any subsidiary to assume or incur any obligation or liability of a third party not listed on Section 2.11(o) of the Company Schedule;
(xixiv) 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;
(xxv) any agreement, contract or commitment relating to capital expenditures and or involving future payments in excess of $25,00020,000 in any single year or in any specific circumstance;
(xxivi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets assets, properties or any interest in any business enterprise enterprise, in each case outside of the Ordinary Course ordinary course of Businessthe Company’s business;
(xxiivii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of creditcredit other than the CapitalSource Debt, including guaranties or instruments of surety referred to in clause subparagraph (xviiii) hereofabove;
(xxiiiviii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 20,000 or more, other than purchases in the ordinary course of business;
(xxivix) any construction contracts;
(x) any distribution, joint marketing marketing, licensing or joint development agreementagreement other than sales agreements with customers of the Company entered into in the ordinary course of business on the Company’s standard form sales agreement as provided to Parent prior to the date hereof;
(xxvxi) any agreement pursuant to which consulting agreement, contract or commitment with an individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, other than sales agreements with customers of the Company has granted or may grant entered into in the future, ordinary course of business on the Company’s standard form sales agreement as provided to any party, a source-code license or option or other right Parent prior 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 Propertydate hereof; or
(xxviixii) any other agreement, contract or commitment that involves or could result in aggregate payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) None of the Company Disclosure Letter and a or any of its subsidiaries has materially breached, violated or defaulted under, or received written summary setting forth notice that it has breached, violated or defaulted under, any of the terms and or conditions of each oral agreement referred any agreement, contract, license or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract, license or commitment, a “Contract”). Each Contract is in such parts full force and effect and is not subject to any breach, default or violation thereunder of which the Company Disclosure Letter (collectively, all such agreements are referred has knowledge by any party obligated to as the "Contracts")Company pursuant thereto. Except as set forth in Part Section 2.12(b) of the Company Disclosure LetterSchedule sets forth a list of any Contract listed on Section 2.12(a), 2.11(n) or 2.10 or other material Contract that requires any consent, approval or waiver by the other parties thereto in connection with respect this Agreement, any Ancillary Agreement or the consummation of the transactions contemplated hereby or thereby. The Company has obtained, or will use all commercially reasonable efforts to each such agreement: (A) the agreement, with respect obtain prior to the Company andEffective Time, all necessary consents, waivers and approvals of parties to any Contract (including the Company's Material Contracts) as are required to obtain in connection with the Merger and the Principal Stockholders' Knowledge, all other parties thereto, is legal, valid, binding, enforceable, transactions contemplated hereby and by the Ancillary Agreements in full force and effect in all respects; (B) neither the Company nor, order to the Company's or the Principal Stockholders' Knowledgeavoid any conflict with, any other Party is in breach violation of, or default, and no event has occurred, which default under (with or without notice or lapse of time would constitute a breach or defaulttime, or permit both), or to avoid giving rise to any right of termination, modification, cancellation or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment acceleration of any additional amounts obligation or consideration other than ongoing feesloss of any benefit under, royalties or payments which any Contract (the Company would otherwise be required to pay“Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (Valueclick Inc/Ca)
Agreements, Contracts and Commitments. (a) Part 2.12(aNeither Company nor any of its subsidiaries (x) of the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company is a party or by which the Company or to any of its assets the following Contracts that are currently in effect or pursuant to which any liability exists or could arise in the future or (y) is boundbound by any of the following Contracts:
(i) any employment, contractor or consulting agreement, or Contract with an employee or individual consultant, contractor, or salesperson, that is not an at-will employment or services agreement under which the consequences of a default providing no severance or other post-termination could have a Material Adverse Effect on the Companybenefits (other than continuation coverage required by law);
(ii) any agreement concerning Contract to grant any severance or termination pay or benefits (in cash or otherwise) to any employee, individual consultant, or any contractor, consulting or salesperson working with a partnership firm or joint ventureother organization;
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) any agreement Contract or plan, including, without limitation, any stock option plan, stock appreciation rights right plan, stock purchase plan or stock purchase planother equity incentive plan (regardless if awards issued thereunder are settled in stock, cash or other property), any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions (either alone or upon the occurrence of any additional or subsequent events) contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions (either alone or upon the occurrence of any additional or subsequent events) contemplated by this Agreement, except as expressly provided for in Section 2.1(b) or Section 2.1(c);
(xviiv) any fidelity Contract of indemnification or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) guaranty other than any agreement of indemnification entered into in connection with the sale or guarantylicense or purchase of products or services in the ordinary course of business;
(xixv) any Contract currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company’s subsidiaries;
(vi) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(vii) any Contract currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(viii) any Contract currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment containing currently in force to sell or distribute any covenant limiting Company products, service or technology except agreements with distributors or sales representative in the freedom of the Company to engage in any line normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to compete with any personAcquiror;
(xxix) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiix) any material settlement Contract entered into within five (5) years prior to the date of this Agreement
(xi) any Contract containing any covenant (A) limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business, to make use of any Company Intellectual Property or compete with any person in any line of business, (B) granting any exclusive rights, (C) granting any person “Most Favored Nations” or similar status, or (D) otherwise having an adverse effect on the right of Company and/or its subsidiaries to sell, distribute or manufacture any products or services or to purchase order or contract for the purchase of raw materials involving $10,000 otherwise obtain any software, components, parts or moresubassemblies;
(xxivxii) any distribution, joint marketing “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to Company or development agreementits subsidiaries;
(xxvxiii) any agreement pursuant to which Contracts providing for any joint venture, partnership or similar arrangement involving 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,sharing of profits;
(xxvixiv) any Contract with any labor union, works council, or other labor organization or entity or any collective bargaining 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 Propertysimilar Contract with its employees; or
(xxviixv) any other agreement, contract Contract that involve current or commitment that involves future obligations to a third party or current or future obligations to Company of $25,000 50,000 or more individually or is not cancelable without penalty within thirty (30) daysthe termination of which would reasonably be expected to materially affect Company and its subsidiaries, taken as a whole.
(b) The Neither Company has delivered nor any of its subsidiaries, nor to Parent a correct and complete copy of each written agreement (as amended Company’s knowledge any other party to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) any of the Contracts to which Company Disclosure Letter and or any of its subsidiaries is a written summary setting forth the terms and conditions of each oral agreement referred party or by which it is bound that are required to be disclosed in such parts of the Company Disclosure Letter (collectivelyany such Contract, all such agreements are referred to as a “Company Contract”), is in material breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the "Contracts"). Except as set forth in Part 2.12(b) material terms or conditions of any of the Company Disclosure LetterContracts in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would be material to the business of Company as currently conducted.
(c) Each material Company Contract is, with respect to each such agreement: Company or any of its subsidiaries (A) as applicable), and, to the agreement, knowledge of Company with respect to the Company and, to the Company's and the Principal Stockholders' Knowledge, all other parties party thereto, is legal, valid, binding, enforceable, valid and in full force and effect in all respects; (B) neither the Company nor, to the Company's or the Principal Stockholders' Knowledge, any other Party is in breach or defaulteffect, 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 does not have any reason to believe that the service called for thereunder cannot be supplied is enforceable in accordance with its terms terms, subject to (i) laws of general application relating to bankruptcy, insolvency and without resulting in a loss to the Company. Subject to receipt relief of the consents set forth in Part 6.3(cdebtors, and (ii) rules of the Company Disclosure Letterlaw governing specific performance, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred injunctive relief 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 payequitable remedies.
Appears in 1 contract
Sources: Merger Agreement (Insightful Corp)
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except as set forth in Section 2.14 of the Company Disclosure Letter lists the following written or oral contractsSchedule, agreements, commitments and other arrangements to which the Company is not a party or to nor is it bound by which the Company or any of its assets is bound:the following Contracts that are currently in force (each, a "Material Contract”):
(i) any agreement under which vendor or supply Contract involving expenditures of greater than $25,000 per year by the consequences Company for the purchase of a default goods or termination could have a Material Adverse Effect on the Companyservices;
(ii) any agreement concerning a partnership current employment, contractor or joint ventureconsulting Contract with an employee or consultant, contractor or salesperson that requires payment in excess of $150,000 per year, except for employee offer letters or employment contracts that are terminable by the Company at will and without notice or severance/termination benefits or similar payments;
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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 AgreementAgreement (including any severance or change of control agreements);
(xvi) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually in excess or equipment requiring payments of greater than $25,00025,000 per year;
(xviiiv) any agreement of indemnification or guaranty;
(xix) 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;
(xx) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,00025,000 individually or $500,000 in the aggregate;
(xxivi) 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 ordinary course of Businessthe business of the Company, consistent with past practices;
(xxiivii) 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 guaranties referred to other than accounts receivables and payables in clause (xviii) hereofthe ordinary course of business which are reflected on the Current Balance Sheet;
(xxiiiviii) any purchase order or contract for the purchase powers of raw materials involving $10,000 or moreattorney;
(xxivix) any distributionContract containing covenants or other obligations by the Company granting to a third Person, joint marketing or development agreementcontaining 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;
(xxvx) any agreement Contract pursuant to which Company licenses to any Person any Company Owned IP that is (A) material to the business of the Company has granted or may grant (B) used and distributed in a Company Product, but excluding the future, to any party, a source-code license or option or other right to use or acquire source-code,Standard License Out Contracts;
(xxvixi) any agreement Contract pursuant to which any Person licenses Intellectual Property to the Company has developed and/or delivered or has received funds from any Governmental Entity that is material to develop and/or deliver any Intellectual Propertythe business of the Company, but excluding the Standard License In Contracts; or
(xxviixii) 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 delivered 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 Contract, nor does the Company have any Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both, nor to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) the Knowledge of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 is any party obligated to the Company and, pursuant to the Company's and the Principal Stockholders' Knowledge, all other parties thereto, any such Material Contract subject to any default thereunder. Each Material Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, except 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 does not have any reason to believe extent that the service called for thereunder cannot same may be supplied in accordance with its terms and without resulting in a loss subject to the Company. Subject Laws of general application relating to receipt bankruptcy, insolvency, reorganization and the relief of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 paydebtors.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part Except as set forth on Schedule 2.12(a) of the ), Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;collective bargaining agreements,
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;,
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xiviv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company;organization,
(xvv) 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;,
(xvivi) any fidelity or surety bond or completion bond;,
(xviivii) any lease of personal property having a value individually in excess of $25,000;15,000,
(xviiiviii) any agreement of indemnification or guaranty;,
(xixix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;,
(xxx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000;15,000,
(xxixi) 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 ordinary course of Business;Company's business,
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;,
(xxiiixiii) any purchase order or contract for the purchase of raw materials involving $10,000 15,000 or more;more other than purchases in the ordinary course of business,
(xxivxiv) any construction contracts,
(xv) 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
(xxviixvi) any other agreement, contract or commitment that involves $25,000 15,000 or more or and is not cancelable without penalty within thirty (30) days.
(ba) The Company has delivered to Parent (any such agreement, contract or commitment, a correct and complete copy of each written agreement (as amended to date"CONTRACT") listed in Part 2.10(a)except for breaches, Part 2.11(q)violations or defaults that will not have a Material Adverse Effect. Each agreement, Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as contract or commitment set forth in Part 2.12(b) any 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, Schedules is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (B) neither the Schedule 2.12(b), is not subject to any default thereunder of which Company nor, has knowledge 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 paypursuant thereto.
Appears in 1 contract
Sources: Merger Agreement (Netrix Corp)
Agreements, Contracts and Commitments. (a) Part 2.12(aAs of the date hereof, except as set forth under Schedule 3.13(a) of the Company Disclosure Letter lists the following written or oral contractsSchedule, agreements, commitments and other arrangements to which the Company is a not party or to nor bound by which any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to Company or any of its assets is bound:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the CompanySubsidiaries;
(ii) Contract (A) relating to the disposition or acquisition by Company or any agreement concerning of its Subsidiaries of a partnership material amount of assets (1) after the date of this Agreement other than in the ordinary course of business consistent with past practice or joint venture(2) prior to the date hereof, which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of them, to result in claims in excess of $100,000 or (B) pursuant to which Company or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than Company’s Subsidiaries;
(iii) any collective bargaining agreement or Contract with any Company Stockholder labor union, trade organization or any of such stockholder's affiliates (other than the Company) or with any affiliate of the Companyemployee representative body;
(iv) Contract establishing any advertising servicesjoint ventures, e-commerce partnerships or other agreement involving the promotion of products and services of third parties by the Companysimilar arrangements;
(v) any agreement with customers Contract (A) prohibiting or suppliers for materially limiting the sharing right 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage compete in any line of business or to compete conduct business with any personPerson or in any geographical area, (B) obligating Company to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party or (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of Company on an exclusive basis to any Person or group of Persons or in any geographical area but excluding any distribution, sales representative, sales agent or similar agreement under which Company has granted a Person an exclusive geographical area and under which Company paid commissions less than $100,000 to such Person in 2024, or from whom Company received less than $100,000 from the sale of product to said Person in 2024;
(xxvi) Contract pursuant to which Company or any agreementof its Subsidiaries (i) licenses any material Intellectual Property from another Person that is used by Company or one of its Subsidiaries in the conduct of its business as currently conducted that could require payment by Company or any Subsidiary of royalties or license fees exceeding $100,000 in any twelve (12) month period or (ii) licenses Company Intellectual Property to another Person, contract or commitment relating except licenses provided to capital expenditures and involving future payments direct customers in excess the ordinary course of $25,000business;
(xxivii) 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 Business;
(xxii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or extension of creditcredit of $100,000 or more, including guaranties referred other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in clause (xviii) hereofeach case in the ordinary course of business consistent with past practice;
(xxiiiviii) Contract providing for any purchase order guaranty by Company or contract for any of its Subsidiaries of third-party obligations (under which Company or any of its Subsidiaries has continuing obligations as of the purchase date hereof) of raw materials involving $10,000 100,000 or more, other than any guaranty by Company or any of its Subsidiaries’ obligations;
(xxivix) Contract between Company, on the one hand, and any distributionAffiliate of Company (other than a Subsidiary of Company), joint marketing or development agreementon the other hand (other than a Company Plan);
(xxvx) any agreement pursuant to which the Contract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than 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,its Subsidiaries;
(xxvixi) any Contract under which Company and Company’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $100,000 during the current or a subsequent fiscal year;
(xii) Employment agreement pursuant to which the Company has developed and/or delivered that cannot be terminated within sixty (60) days without a severance payment obligation;
(xiii) Change of control bonus or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Propertyother bonus agreement that will trigger a payment obligation as a result of closing this Transaction; or
(xxviixiv) Contract to enter into any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) daysof the foregoing.
(b) The Company has delivered been given access to Parent a true and correct and complete copy of each all written agreement Company Material Contracts, together with all material amendments, waivers or other changes thereto. There are no oral Company Material Contracts.
(c) Except as amended would not, individually or in the aggregate, reasonably be expected to datehave a Material Adverse Effect on Company, (i) listed Company is not in Part 2.10(a)default under any Contract listed, Part 2.11(q)or required to be listed, Part 2.11(r), Part 2.12(a) and Part 2.21(bin Section 3.13(a) of the Company Disclosure Letter and Schedule (each, a written summary setting forth “Company Material Contract” and, collectively, the terms and conditions “Company Material Contracts”), and, (ii) to Company’s Knowledge, as of the date hereof, the other party to each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts")Material Contracts is not in default thereunder. Except as set forth in Part 2.12(b) of the Each 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, Material Contract is legal, valid, binding, enforceable, legal and in full force and effect in all respects; (B) neither the and is valid, binding and enforceable against Company norand, to the Company's or the Principal Stockholders' ’s Knowledge, any each 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 party thereto. As of the agreement; and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Timedate hereof, the Company will be permitted has not received any written notice that any party to exercise all any Company Material Contract, or to the Knowledge of Company any notice (whether or not written), of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment of any additional amounts transactions contemplated hereby or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to payotherwise).
Appears in 1 contract
Agreements, Contracts and Commitments. Section 2.8 of the Disclosure Schedules sets forth, as of the date of this Agreement, a true and complete list of, and the Company has made available to Buyer true and complete copies of, the following Contracts (other than any (a) Part 2.12(aLeases or (b) Contracts that constitute Excluded Assets or Excluded Liabilities) (collectively, the “Material Contracts”):
(a) each Contract of the Company Disclosure Letter lists and the following written Company Subsidiaries involving aggregate payments by or oral contractsto the Company or the Company Subsidiaries of more than $250,000 in any twelve month period;
(b) (i) all Contracts pursuant to which any Indebtedness for borrowed money of the Company or a Company Subsidiary is outstanding or may be incurred, agreements, commitments and (ii) all Contracts of or by the Company guaranteeing any debt obligations of any other arrangements Person (other than the Company or the Company Subsidiaries);
(c) all Contracts pursuant to which the Company or a Company Subsidiary has agreed not to, or which, following the consummation of the transactions contemplated by this Agreement, would restrict the ability of Buyer, including the Company or any Company Subsidiary, to compete with any Person in any business or in any geographic area or to engage in any business or other activity, including any restrictions relating to “exclusivity” or any similar requirement in favor of any Person other than the Company or a Company Subsidiary or pursuant to which any material benefit is required to be given or lost as a result of so competing or engaging, other than any Leases;
(d) all Contracts to which the Company or a Company Subsidiary is party granting any license to, or franchise in respect of, any material right, property or other asset;
(e) all Contracts pursuant to which material Intellectual Property is licensed to or from the Company or a Company Subsidiary (excluding for the use of commercially available, off-the-shelf software); and
(f) all joint venture, limited liability company, partnership or other similar Contracts (including all amendments thereto) in which the Company or a Company Subsidiary holds an interest. Each Material Contract is a legal, valid and binding obligation of the Company or a Company Subsidiary, as applicable, and to the knowledge of the Company, the other parties thereto, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity. Neither the Company nor any Company Subsidiary is in violation of or in default under (nor, to the knowledge of the Company, does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Material Contract to which it is a party or by which the Company or any of its assets is bound:
(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 Subsidiary, or any of such stockholder's affiliates (other than the Company) or with any affiliate of the Company;
(iv) any advertising services, e-commerce their respective properties or other agreement involving assets are bound, except for violations or defaults that individually or in the promotion of products aggregate have not had, 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 are not reasonably likely 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 be material 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 Purchased Companies taken as 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) 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) dayswhole.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.
Appears in 1 contract
Sources: Interest Purchase Agreement (Red Rock Resorts, Inc.)
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept as disclosed in Section 2.11(a) of the Company Seller Disclosure Letter lists the following written Schedule or oral contractsas contemplated by this Agreement, agreements, commitments and other arrangements to which the Company neither SGE nor FSE is a party to any oral or by which the Company or any of its assets is bound:
written (i) any agreement under which the consequences of a default contract, agreement, or termination could have a Material Adverse Effect on the Company;
instrument relating to indebtedness in an amount exceeding $50,000; (ii) partnership, joint venture or limited liability or management or operating agreement with any agreement concerning a partnership or joint venture;
Person; (iii) contract relating to any agreement with merger, stock purchase, consolidation, business combination, share exchange, business acquisition, or for the purchase, acquisition, sale or disposition of any Company Stockholder assets of SGF or any FSE outside the ordinary course of such stockholder's affiliates (business, other than the Company) or with any affiliate of the Company;
confidentiality agreement entered into in connection therewith; (iv) any advertising services, eother contract to be performed after the date hereof that would be a “material contract” (as defined in Item 601 (b)(10) of Regulation S-commerce or other agreement involving K of the promotion of products and services of third parties by the Company;
SEC); (v) contract relating to any agreement with customers or suppliers for the sharing of fees“strategic alliances” (i.e., the rebating of charges or other similar arrangements;
cross-marketing, affinity relationships, etc.); (vi) contract that restricts (geographically or otherwise) the conduct of any agreement obligating the Company to deliver maintenance services line of business by SGF or future product enhancements FSE, or containing contains a "most favored nation" pricing clause;
non-compete or exclusivity provision; (vii) any agreement obligating the Company to provide source code to any third party for any Company Intellectual Property;
contract that involves annual expenditures in excess of $50,000 and is not cancelable within twelve (viii12) 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) any agreement or planmonths, including, without limitation, any stock option planlease or similar Contract involving the use of Company Leased Property; or (viii) contract that is between (A) SGF or FSE, stock appreciation rights plan or stock purchase planon the one hand, and (B) any of the benefits of which will be increased, its executive officers or the vesting of benefits of which will be accelerated, by the occurrence directors (or any relative or immediate family member of any executive officer or director of the transactions contemplated by this Agreement SGF or the value of any of the benefits of which will be calculated FSE), on the basis of any of the transactions contemplated by this Agreement;
other hand (xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) 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 partyindividually, 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“Material Contract” and collectively, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days“Material Contracts”).
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (Except as amended to date) listed disclosed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(bSection 2.11(b) of the Company Seller Disclosure Letter Schedule, (i) each Material Contract is valid and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectivelybinding upon SGF or FSE, all such agreements are referred to as the "Contracts"). Except as set forth in Part 2.12(b) of the Company Disclosure Letter, with respect to each such agreement: case may be (A) the agreement, with respect to the Company and, to the Company's and the Principal Stockholders' KnowledgeSeller’s knowledge, on all other parties thereto), in accordance with its terms and is legal, valid, binding, enforceable, and in full force and effect effect; (ii) each of SGF and FSE has in all respectsmaterial respects performed all obligations required to be performed by it as of the date hereof under each Material Contract and, to Seller’s knowledge, each other party to each Material Contract has in all material respects performed all obligations required to be performed by it under such Material Contract; (Biii) neither the Company nor, to the Company's or the Principal Stockholders' Knowledge, any other Party there is in no breach or defaultviolation of or default by SGF or FSE under any of the Material Contracts, whether or not such breach, violation or default has been waived; and (iv) no event has occurredoccurred with respect to SGF or FSE that, which with notice or lapse of time or both, would constitute a breach breach, violation or defaultdefault of, or permit give rise to a right of termination, modification, cancellation, foreclosure, imposition of a lien, prepayment or accelerationacceleration under, under the agreement; (C) no Party has repudiated any provision of the agreement; and Material Contracts, except for such breaches, violations, defaults, terminations, modifications, cancellations, foreclosures, impositions of a Lien, prepayments or accelerations referred to in clause (Dii), (iii) or (iv), alone or in the Company does not aggregate with any other such breaches, violations, defaults, terminations, modifications, cancellations, foreclosures, impositions of a lien, prepayments or accelerations referred to in clause (ii), (iii) or (iv), would be reasonably likely to have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payMaterial Adverse Effect.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) As of the Company Disclosure Letter lists the following written or oral contractsdate of this ------------------------------------- Agreement, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;collective bargaining agreements,
(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;
(xii) any agreements or arrangements that contain any severance pay or similar post-employment liabilities or obligations;,
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xiviv) any employment or consulting agreement, contract or commitment 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 Company;organization,
(xvv) 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;,
(xvivi) any fidelity or surety bond or completion bond;,
(xviivii) any lease of personal property having a value individually involving annual payments by the Company in any individual case in excess of $25,000;50,000,
(xviiiviii) other than pursuant to the Company's standard end-user license agreement (which is attached to the disclosure schedule), any agreement pursuant to which the Company is obligated to provide indemnification or guaranty the indebtedness or liabilities of third parties,
(ix) any agreement of indemnification or guaranty;
(xix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;,
(xxx) any agreement, contract or commitment 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 $25,000;100,000,
(xxixi) 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 ordinary course of Business;the Company's business,
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by or extension of creditcredit by or to the Company, including guaranties referred to in clause (xviiiviii) hereof;,
(xxiiixiii) any purchase order or contract for the purchase of raw materials (not including in-license of technology) involving $10,000 50,000 or more;,
(xxivxiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement;agreement which cannot be canceled without penalty upon notice of sixty (60) days or less,
(xxvxvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, party a source-code license or option or other right to use or acquire source-code,;, or
(xxvixvii) any other agreement pursuant to which that involves payments by the Company has developed and/or delivered of $100,000 or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Propertymore; or
(xxviixviii) any other agreement, contract or commitment agreement that involves $25,000 or more or is not cancelable without penalty of $25,000 or more within thirty (30) days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.
Appears in 1 contract
Sources: Merger Agreement (Critical Path Inc)
Agreements, Contracts and Commitments. (a) Part Except as set forth on Schedule 2.12(a) of ), the Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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;
(xiiii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiviv) any employment or consulting agreement, agreement or contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreementagreement or contract, contract or commitment under which any a firm or other organization provides services to the CompanyCompany pursuant to which the Company is obligated to make payments in excess of $20,000 per year;
(xvv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planplan (other than the Company Option Plan and the Incentive Stock Option Agreements), any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xvivi) any fidelity or surety bond or completion bond;
(xviivii) any lease of personal property having a value individually in excess of $25,00020,000;
(xviiiviii) any agreement of indemnification or guarantyguaranty (other than indemnification provisions in distribution, reseller and End-User Licenses);
(xixix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xxx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00020,000 individually or $50,000 in the aggregate;
(xxixi) 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 Businessthe Company's business;
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;
(xxiiixiii) any purchase order or contract for the purchase of raw materials involving $10,000 20,000 or more;
(xxivxiv) any construction contract;
(xv) other than End-User Licenses, any material distribution, joint marketing or development agreement;
(xxvxvi) any agreement End-User Licenses with customers who the Company considers to be active customers;
(xvii) any agreement, contract or commitment pursuant to which the Company has granted or may grant in the future, to any party, party a source-code license or option or other right to use or acquire source-code,;
code (xxvi) any agreement pursuant to which other than the Company has developed Company's source code escrow arrangements with distributors, resellers and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual PropertyEnd Users); or
(xxviixviii) any other agreement, contract or commitment (other than End-User Licenses) that involves $25,000 20,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as set forth in Part Schedule 2.12(b) sets forth a list of the Company Disclosure Letter, with respect to each such agreement: (A) the agreement, with respect to the Company and, to the Company's top ten (10) customers according to revenue for the fiscal year ended June 30, 1999 and for the Principal Stockholders' Knowledgeeight (8) months ended February 29, all other parties thereto2000.
(c) To the Company's knowledge, the Company has not breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on Schedule 2.12(a) or Schedule 2.11(b) (any such agreement, contract or commitment, a "CONTRACT") and each Contract is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (B) neither the Company norSchedule 2.12(c), no Contract is subject 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 material default thereunder 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 has knowledge by any party obligated to paythe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (New Era of Networks Inc)
Agreements, Contracts and Commitments. (a) Part 2.12(a) of the Company Disclosure Letter lists the following written or oral contractsExcept as set forth in Schedule 2.16(a), agreements, commitments and other arrangements to which the Company is not currently a party or by which the Company or any of its assets to nor is boundit currently bound by:
(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);
(xia) any collective bargaining agreements;
(xiib) any agreements employment or arrangements consulting agreement, contract or commitment with any officer, director, employee or member of the Company's Board of Directors, other than those that contain any severance pay or post-employment liabilities or obligationsare terminable by the Company at will;
(xiiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xivd) any employment or consulting agreement, contract or commitment 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;
(xve) 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;
(xvif) any fidelity or surety bond or completion bond;
(xviig) any lease of personal property having a value individually in excess of $25,000;
(xviiih) any agreement of indemnification or guaranty;
(xixi) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(xxj) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,00020,000;
(xxik) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company after the date of this Agreement of assets in excess of $25,000 not in the ordinary course of business, or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Business;enterprise,
(xxiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiih) hereof;
(xxiiim) any purchase order or contract for the purchase of raw materials involving $10,000 25,000 or more;
(xxivn) any construction contracts;
(o) any dealer, distribution, joint marketing (excluding joint marketing agreements: (i) involving financial obligations or development liabilities to the Company; or (ii) that do not involve rights to sell Company Products to end-users), development, content provider, destination site or merchant agreement;
(xxvp) any agreement pursuant to which the Company has granted or may be obligated to grant in the future, to any party, 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;
(xxviq) 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 developed and/or delivered advanced or has received funds from loaned any Governmental Entity amount to develop and/or deliver any Intellectual Propertyshareholder 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
(xxviit) 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 Company has delivered not, and has not received notice that it has, breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(abe set forth on Schedule 2.16(a), Part 2.11(qSchedule 2.14(f) or Schedule 2.14(k) (any such agreement, contract or commitment, a "Contract"), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of nor has the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectivelybreached, all such agreements are referred to as the "Contracts")violated or defaulted under any 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, Each Contract is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (BSchedule 2.16(b) neither the Company nor, and to the Company's or the Principal Stockholders' Knowledgeknowledge, is not subject to 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 material default thereunder by any provision of the agreement; and (D) party obligated to the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 paypursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Zapworld Com)
Agreements, Contracts and Commitments. For purposes of this Section 2.16 “in the aggregate” shall refer to a series of related transactions with a single party or group of related parties. Except as set forth in Section 2.16 of the Disclosure Schedule (specifying the appropriate paragraph):
(a) Part 2.12(a) Neither Company nor any of the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company its Subsidiaries is a party to, or by which the Company or any of its assets is boundit bound by:
(i) any agreement under which the consequences of a default (1) employment, contractor or consulting agreement, (2) contract or commitment with an Employee or individual consultant, contractor, or salesperson, (3) any agreement, contract or commitment to grant any severance or termination could have pay (in cash or otherwise) to any Employee, or (4) any contractor, consulting or sales agreement, contract, or commitment with a Material Adverse Effect on the Companyfirm or other organization;
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any collective bargaining, union or works council agreements;
(v) any lease of personal property having a value individually in excess of $25,00025,000 individually or $50,000 in the aggregate;
(xviiivi) any agreement of indemnification or guaranty;
(xixvii) 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;
(xx) any agreementContract, contract lease or commitment relating to capital expenditures and involving future payments in excess of $25,00025,000 individually or $50,000 in the aggregate;
(xxiviii) any agreement, contract or commitment relating to the disposition or acquisition of assets (whether tangible or intangible) or any interest in any business enterprise outside the Ordinary Course ordinary course of Businessthe Company’s business;
(xxiiix) Company IP Agreements;
(x) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiixi) any purchase order or contract for the purchase of raw materials involving in excess of $10,000 50,000 individually or more$100,000 in the aggregate;
(xxivxii) any construction contracts;
(xiii) any dealer, distribution, strategic alliance, joint marketing marketing, affiliate or development agreement;
(xxvxiv) any agreement 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 agreement, contract or commitment pursuant to which the Company or any of its Subsidiaries has granted undertaken to, 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 receipt of revenue is contingent upon, the delivery or provision of products, technology or service offerings not in commercial existence as of the date hereof, and specifically not contingent upon the release of any new product or new version of an existing Company has developed and/or delivered Product;
(xvi) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or has received funds from independent software vendor, or other agreement for use, provision or distribution of the Company Products or other technology of the Company or any Governmental Entity to develop and/or deliver any Intellectual Propertyof its Subsidiaries; or
(xxviixvii) any other agreement, contract contract, lease or commitment commitment, including, without limitation, or any service, operating or management agreement or arrangement with respect to any of the Leased Real Property, that involves $25,000 50,000 individually or $100,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) The Each Contract to which the Company has delivered to Parent or any of its Subsidiaries is a correct party or any of its properties or assets (whether tangible or intangible) is subject is a valid and complete copy of each written binding agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions or any of its Subsidiaries enforceable against each oral agreement referred to in such parts of the Company Disclosure Letter (collectivelyparties thereto in accordance with its terms, all such agreements are referred to as the "Contracts"). Except as set forth and is in Part 2.12(b) of the Company Disclosure Letter, with respect to each such agreement: (A) the agreement, full force and effect with respect to the Company or any of its Subsidiaries 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 in all respects; (B) neither the Company nor, to Knowledge of the Company's or the Principal Stockholders' Knowledge, any other Party party thereto. The Company is in breach compliance with and has not breached, violated or default, and no event has occurred, which with notice or lapse of time would constitute a breach or defaultdefaulted under, or permit terminationreceived notice that it has breached, modificationviolated or defaulted under, or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have terms or conditions of any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss such Contract, nor to the Company. Subject to receipt of the consents set forth in Part 6.3(c) Knowledge of the Company is any party obligated to the Company or any of its Subsidiaries pursuant to 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. True and complete copies of each Contract disclosed in the Disclosure LetterSchedule or required to be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, following the Effective Time“Material Contracts”) have been delivered or made available to Parent.
(c) The Company and each of its Subsidiaries has fulfilled all material obligations required pursuant to each Contract to have been performed by the Company or any of its Subsidiaries prior to the date hereof, and, without giving effect to the Merger, the Company will be permitted to exercise fulfill, when due, all of its obligations under the Company's rights under such agreements Material Contracts that remain to be performed after the same extent date hereof.
(d) All outstanding indebtedness of the Company would have been able to had the Merger not occurred and 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 paypenalty.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Advent Software Inc /De/)
Agreements, Contracts and Commitments. (a) Part Except as set forth on Schedule 2.12(a) of ), the Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;collective bargaining agreements,
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;,
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xiviv) any employment or consulting agreement, contract or commitment 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;,
(xvv) 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;,
(xvivi) any fidelity or surety bond or completion bond;,
(xviivii) any lease of personal property having a value individually in excess of $25,000;100,000,
(xviiiviii) any agreement of indemnification or guaranty;,
(xixix) 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;,
(xxx) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000;100,000,
(xxixi) 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 ordinary course of Business;the Company's business,
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;,
(xxiiixiii) any purchase order or contract for the purchase of raw materials involving $10,000 25,000 or more;,
(xxivxiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement;,
(xxvxvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, 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
(xxviixvii) any other agreement, contract or commitment agreement that involves $25,000 100,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . 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 delivered 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 Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part be set forth on Schedule 2.12(a) and Part 2.21(bor Schedule 2.11(b) of the Company Disclosure Letter and (any such agreement, contract or commitment, a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "ContractsCONTRACT"). 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, Each Contract is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (B) neither the Company norSchedule 2.12(b), is not subject 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 default thereunder 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 has knowledge by any party obligated to paythe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Informix Corp)
Agreements, Contracts and Commitments. Except for the Leases or the Units, all of which are listed on Exhibit "A," the Company has listed in Schedule 4.7 all leases, contracts, agreements and instruments to which it is a party as of the date hereof (ai) Part 2.12(awhich is an employment agreement between the Company, on the one hand, and its officers and employees, on the other hand, (ii) which, upon Closing, will (either alone or upon the occurrence of any additional acts or events, including the passage of time) result in any material payment or benefit (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any right to any material payment or benefits, from Buyer or the Company to any officer, director, consultant or employee of the Company, (iii) which involves payment by or to the Company of more than US$250,000 or extends for a term of six months or more, (iv) which expressly limits the ability of the Company Disclosure Letter lists the following written to compete in or oral contractsconduct any line of business or compete with any Person or in any geographic area or during any period of time, agreementsin each case, commitments and other arrangements if such limitation is or is reasonably likely to which the Company is a party or by which the Company or any of its assets is bound:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on be material to 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 which is a material joint venture agreement, joint operating agreement, partnership agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
contract or agreement involving a sharing of profits and expenses with one or more third Persons, (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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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 the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement 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;
Agreement (xviincluding any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan) any fidelity or surety bond (vii) which is a limited liability operating agreement or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any equity holder rights agreement of indemnification or guaranty;
(xix) 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;
(xx) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) any purchase order or contract which otherwise provides for the purchase issuance of raw materials involving $10,000 or more;
any securities in respect of this Agreement (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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Material Contracts"). Except as set forth in Part 2.12(b) of the The Company Disclosure Letterhas not breached, 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 in all respects; (B) neither the Company nor, nor to the Company's or Seller's Knowledge is there any claim or any legal basis for a claim that the Principal Stockholders' KnowledgeCompany or any third party has breached, 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) terms or conditions of any Material Contract, except where any such breach, whether considered individually or in the Company does not have any reason to believe that the service called for thereunder canaggregate, could not be supplied in accordance with its terms and without resulting reasonably expected to result in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payMaterial Adverse Effect.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Pacific Energy Resources LTD)
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except as set forth in Section 2.13 of the Company Disclosure Letter lists the following written or oral contractsSchedule, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to, nor is boundbound by:
(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;
(xiiii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiviv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xvv) 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;
(xvivi) any fidelity or surety bond or completion bond;
(xviivii) any lease of personal property having a value individually in excess of $25,000;
(xviiiviii) any agreement of indemnification or guaranty;
(xix) 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;
(xxix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000;
(xxix) 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 Businessthe Company’s business;
(xxiixi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;
(xxiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxivxii) any distribution, joint marketing or development agreement;
(xxvxiii) any agreements involving payments based on profits or revenues of the Company;
(xiv) any agreements pertaining to projects commonly known as “fixed price/deliverable based projects” involving an amount in excess of $25,000;
(xv) any agreements containing “most favored nation” provisions or any similar provision requiring that a third party be offered terms or concessions at least as favorable as those offered to one or more other parties;
(xvi) any powers of attorney or agency agreements;
(xvii) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,;
(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
(xxviixviii) any other agreement, contract or commitment that involves could reasonably be expected to require the Company to spend $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) . The Company has delivered not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreement, contract or commitment required to be set forth in Section 2.13 of the Disclosure Schedule (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and, except as otherwise disclosed in Section 2.13 of the Disclosure Schedule, is not subject to any material default thereunder of which the Company has Knowledge by any party obligated to the Company pursuant thereto. The Company has provided Parent a correct with an accurate and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payContract.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as set forth in Section 2.16(a) of the Disclosure Schedule (specifying the appropriate paragraph):
(a) Part 2.12(a) Neither Company nor any of the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company its Subsidiaries is a party to, or by which the Company or any of its assets is boundit bound by:
(i) any agreement under which the consequences of a default 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 could have a Material Adverse Effect on the Companypay (in cash or otherwise) to any Employee;
(ii) any agreement concerning a partnership written 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any collective bargaining, union or works council agreements;
(v) any lease of personal property having a value individually in excess of $25,00050,000 individually or $175,000 in the aggregate;
(xviiivi) any written or binding oral agreement that imposes surety, guaranty or indemnification obligations on the Company or any of indemnification or guarantyits 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);
(xixvii) any written or 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;
(xx) any agreementContract, contract lease or commitment relating to capital expenditures and involving future payments in excess of $25,00050,000 individually or $175,000 in the aggregate;
(xxiviii) 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 ordinary course of Businessthe Company’s business;
(xxiiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiix) any purchase order or contract for the purchase of raw materials involving in excess of $10,000 50,000 individually or more$175,000 in the aggregate;
(xxivxi) any distributionconstruction contracts related to real property;
(xii) any joint marketing, joint marketing venture, partnership, strategic alliance, affiliate or development agreement;
(xxvxiii) any agreement 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 granted undertaken to, 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 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 has developed and/or delivered or has received funds from any Governmental Entity of its Subsidiaries and a customer or partner of the Company or any of its Subsidiaries pursuant to develop and/or deliver 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 Intellectual Propertyof 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
(xxviixx) any other written or binding oral agreement, contract Contract, lease or commitment commitment, including, without limitation, or any service, operating or management agreement or arrangement with respect to any of the Leased Real Property, that involves $25,000 50,000 individually or $175,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) The Each customer Contract or other material Contract to which the Company has delivered to Parent or any of its Subsidiaries is a correct party or any of its properties or assets (whether tangible or intangible) is subject is a valid and complete copy of each written binding agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions or any of its Subsidiaries enforceable against each oral agreement referred to in such parts of the Company Disclosure Letter (collectivelyand its Subsidiaries which are parties thereto in accordance with its terms, all such agreements are referred to as the "Contracts"). Except as set forth and is in Part 2.12(b) of the Company Disclosure Letter, with respect to each such agreement: (A) the agreement, full force and effect with respect to the Company or any of its Subsidiaries 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 in all respects; (B) neither the Company nor, to Knowledge of the Company's or the Principal Stockholders' Knowledge, any other Party party thereto. The Company is in breach or defaultcompliance with, and no event has occurrednot breached, which with violated or defaulted under, or received 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 does not have any reason to believe that a customer may assert that it has breached, violated or defaulted under, any of the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss or conditions of any such customer Contract or other material Contract, nor to the Company. Subject to receipt of the consents set forth in Part 6.3(c) Knowledge of the Company is any party obligated to the Company or any of its Subsidiaries pursuant to 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. True and complete copies of each Contract disclosed in the Disclosure Letter, following the Effective TimeSchedule 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 such agreements to the same extent the Company would have been able to had the Merger not occurred and 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 paypenalty.
Appears in 1 contract
Sources: Merger Agreement (Taleo Corp)
Agreements, Contracts and Commitments. (a) Part Except as set forth on Schedule 2.12(a) of ), the Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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);
(xia) any collective bargaining agreements;,
(xiib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;,
(xiiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xivd) any employment or consulting agreement, contract or commitment 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 Company;organization,
(xve) 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;,
(xvif) any fidelity or surety bond or completion bond;,
(xviig) any lease of personal property having a value individually in excess of $25,000;,
(xviiih) any agreement of indemnification or guaranty;,
(xixi) 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;,
(xxj) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000;,
(xxik) 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 ordinary course of Business;the Company's business,
(xxiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;,
(xxiiim) any purchase order or contract for the purchase of raw materials involving $10,000 or more;,
(xxivn) any construction contracts,
(o) 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
(xxviip) 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 Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as set forth in Part 2.12(b) of the Company Disclosure Letterfor such alleged breaches, with respect to each such agreement: (A) the agreement, with respect to the Company and, to the Company's violations and the Principal Stockholders' Knowledge, all other parties thereto, is legal, valid, binding, enforceabledefaults, and in full force and effect in all respects; (B) neither the Company nor, 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 events that would constitute a breach breach, violation or defaultdefault with the lapse of time, giving of notice, or permit terminationboth, modification, or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied as are all noted in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective TimeSchedule 2.12(b), the Company will be permitted to exercise all has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment terms or conditions of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay.agreement,
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Critical Path Inc)
Agreements, Contracts and Commitments. (a1) Part 2.12(a) SCHEDULE 2.12 contains a listing of the Company Disclosure Letter lists the following written or oral all contracts, agreements, or commitments (whether written or oral, and other arrangements whether or not legally binding or enforceable) described below to which the Company or any Subsidiary is a party party, or by which the Company or any of its assets Subsidiary is bound:
(i) any agreement under which . Such listing provides reasonably complete details concerning such contracts, identifying among other things, the consequences parties to the contracts, the nature 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 contract, the amount of the remaining commitment of the Company Stockholder or any of such stockholder's affiliates (other than Subsidiary thereunder, and the Company) or with any affiliate office of the Company;
(iv) any advertising services, e-commerce Company 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 Subsidiary where details relating to the acquisition by contract are located. Copies of such contracts, agreements and commitments have been delivered to the Company of any operating business Purchaser or the capital stock of any other person;are attached to on SCHEDULE 2.12.
(x1) any agreement requiring the payment to any person of a brokerage Each contract, agreement, or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees commitment, whether in the Ordinary Course of Business);
(xi) any collective bargaining agreements;
(xii) any agreements Business or arrangements that contain any severance pay not, which involves performance of services or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any delivery of the benefits of which will be increased, or the vesting of benefits of which will be acceleratedgoods and/or materials, by the occurrence Company or any Subsidiary of any of the transactions contemplated by this Agreement an amount 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii2) Each contract, agreement, or commitment out of the Ordinary Course of Business involving expenditures, capital or otherwise, or receipts of the Company or any agreement Subsidiary in excess of indemnification or guaranty$25,000;
(xix3) any Each lease, rental or occupancy agreement, contract license, installment and conditional sale agreement, and other contract, agreement, or commitment containing affecting the ownership of, leasing of, title to, use of, or any covenant limiting leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(4) Each licensing agreement or other agreement or commitment with respect to any Intellectual Property Asset or other intangible asset, including agreements with current or former employees, consultants, or contractors regarding the freedom appropriation or the non-disclosure of intellectual property;
(5) Each employment agreement and each other contract, agreement, or commitment to which any employee, consultant, or contractor of the Company or any Subsidiary is bound, including, but not limited to, any which in any manner purports to (A) restrict such employee's, consultant's, or contractor's freedom to engage in any line of business or to compete with any other person, (B) assign to any other Person such employee's, consultant's, or contractor's rights to any invention, improvement, or discovery, or (C) keep any information confidential or secret;
(xx6) any agreement, Each collective bargaining agreement or other contract or commitment to or with any labor union or other employee representative of a group of employees relating to capital expenditures and involving future payments in excess wages, hours, or other conditions of $25,000employment;
(xxi7) any Each joint venture contract, joint operating agreement, contract partnership arrangement or other agreement (however named) involving a sharing of profits, losses, costs, or liabilities by the Company or any Subsidiary with any other Person or party;
(8) Each contract, agreement, or commitment relating containing covenants which in any way purport to restrict the disposition or acquisition of assets Company's or any interest Subsidiary's business activity or purport to limit the freedom of the Company or any Subsidiary to engage in any line of business enterprise outside or to compete with any Person;
(9) Each contract, agreement, or commitment providing for payments to or by any Person or entity based on sales, purchases or profits, other than direct payments for goods;
(10) Each power of attorney which is currently effective and outstanding;
(11) Each contract, agreement, or commitment entered into other than in the Ordinary Course of Business which contains or provides for an express undertaking by the Company or any Subsidiary to be responsible for consequential damages;
(12) Each warranty, guaranty or other similar undertaking with respect to contractual performance extended by the Company or any Subsidiary other than in the Ordinary Course of Business;
(xxii13) any mortgagesEach sales, indenturesagency, loans distributorship or credit agreements, security agreements brokerage agreement or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereoffranchise;
(xxiii14) any Each loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation, lease purchase order agreement or contract for the purchase of raw materials involving $10,000 other instrument evidencing or moresecuring indebtedness;
(xxiv15) Each contract, agreement, or commitment presently in effect or entered into by any distributionShareholder of the Company, joint marketing the Company or development agreementany Subsidiary prior to the date hereof, whether or not fully performed, in connection with the issuance of capital stock, bonds or other securities of the Company or any Subsidiary;
(xxv16) Each contract, agreement, or commitment with any agreement pursuant to which employee, Shareholder of 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,Affiliate;
(xxvi17) any Each contract, agreement pursuant to or commitment which otherwise materially affects the condition (financial or otherwise), properties, assets, liabilities, business or prospects of the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual PropertySubsidiary; orand
(xxvii18) Each amendment, supplement, and modification in respect of any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) daysof the foregoing.
(b2) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as set forth in Part 2.12(b) on SCHEDULE 2.12, all of the Company Disclosure Lettercontracts, with respect agreements, or commitments listed pursuant to each such agreement: paragraph (Aa) 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 hereof are in full force and effect and are valid and enforceable in all respects; (B) neither the Company noraccordance with their terms, to the Company's there are no defaults thereunder or the Principal Stockholders' Knowledge, any other Party is in breach or defaultbreaches thereof, and no condition exists or event has occurredoccurred which, which with notice or lapse of time or both, would constitute a breach default or defaulta basis for force majeure or other claim of excusable delay or non-performance thereunder. The terms and conditions of all such contracts, agreements, or permit termination, modification, or acceleration, under commitments are reasonable and customary in the agreement; (C) no Party has repudiated any provision of the agreement; industries and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied trades in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 and the Subsidiaries operate, and there are no extraordinary terms contained therein.
(3) There are no renegotiations of, or attempts to renegotiate, or outstanding rights to renegotiate, any material amounts paid or payable to the Company or any Subsidiary under current or completed contracts, agreements, or commitments with any person or entity having the contractual or statutory right to demand or require such renegotiation. No such person or entity has made written demand for such renegotiation.
(4) The contracts, agreements, or commitments relating to the sale, design, manufacture, or provision of products or services by the Company or any Subsidiary have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, which is or would otherwise be required in violation of any applicable Legal Requirement.
(5) After the consummation of the transactions contemplated by this Agreement, the Surviving Corporation will have the same rights as the Company or any Subsidiary had prior to paythe consummation of the transactions contemplated herein in such contracts, agreements and commitments.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as set forth on Schedule 3.12, the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company Partnership is not a party or by which the Company or any of its assets to nor is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;collective bargaining agreements,
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;,
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xiviv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Company;organization, which is not cancelable without penalty or other financial obligation within 30 days or which has total annual remuneration in excess of $100,000,
(xvv) 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;,
(xvivi) any fidelity or surety bond or completion bond;,
(xviivii) any lease of personal property having a value individually with fixed annual rental payments in excess of $25,000;,
(xviiiviii) any agreement of indemnification (other than indemnification provisions contained in agency-client agreements running in favor of clients with respect to the non-infringement of advertising campaigns and materials created by the Partnership of the Intellectual Property of any Person) or guaranty;guaranties, (other than the endorsement of negotiable instruments for collection in the ordinary course of business)
(xixix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Partnership to engage in any line of business or to compete with any person;, including agreements which limit the Partnership's ability to service competitive accounts after the termination of the agency-client agreement or limit the ability of affiliates of the Partnership to service competitive accounts during or after the termination of the agency-client agreement; provided, however, (x) standard confidentiality provisions in agreements with clients entered into in the ordinary course of business and (y) exclusivity provisions in agreements with clients which limit the Partnership's freedom to service competitive accounts during the term of such agency-client agreement do not have to be set forth,
(xxx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000;100,000,
(xxixi) 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 Business;the Partnership's business,
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;,
(xxiiixiii) any purchase order or contract for the purchase of raw materials involving $10,000 50,000 or more;; provided, however, that (x) commitments to media and production expenses which are fully reimbursable from clients, and (y) estimates or purchase orders given in the ordinary course of business relating to the execution of projects, do not have to be set forth on Schedule 3.12,
(xxivxiv) any distribution, joint marketing or development agreement;construction contracts,
(xxvxv) any agreement pursuant to which the Company has granted or may grant in the futurejoint venture agreement, 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
(xxviixvi) any other agreement, contract or commitment that involves $25,000 100,000 or more or is not cancelable without penalty within thirty (30) days.
(b) . The Company Partnership has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)not breached, Part 2.11(q)violated or defaulted under, Part 2.11(r)or received notice that it has breached, Part 2.12(a) and Part 2.21(b) violated or defaulted under, any of the Company Disclosure Letter and a written summary setting forth the material terms and or conditions of each oral agreement referred to in any such parts of the Company Disclosure Letter agreement, contract or commitment set forth on Schedule 3.12 (collectivelyany such agreement, all such agreements are referred to as the contract or commitment, a "ContractsContract"). Except as Each Contract set forth in Part 2.12(b) any 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, Schedules is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither and is not subject to any default thereunder by the Company norPartnership and, 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 knowledge of the agreement; and (D) Current Partners, is not subject to default of the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss other party obligated to the CompanyPartnership pursuant thereto. Subject to receipt Schedule 3.12 also lists all consents, waivers, approvals and assignments of the consents set forth parties to any Contract as are required thereunder in Part 6.3(c) of connection with the Company Disclosure Letter, following Acquisition or necessary for such Contract to remain in effect without modification after the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payClosing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept for (i) the Restricted Agreements and (ii) as set forth in Section 2.14(a) of the Company Disclosure Letter lists the following written or oral contractsSchedule, agreements, commitments and other arrangements to which neither the Company nor the Subsidiary is a party or to, nor is either bound by which the Company or any of its assets is bound:the following (together with the Restricted Agreements, the “Material Contracts”):
(i) any employment, contractor or consulting agreement, contract or commitment and any non-compete, confidentiality, Intellectual Property ownership, trade secrets or similar agreement under which the consequences of a default with an employee or termination could have a Material Adverse Effect on the Companyindividual consultant, contractor, or salesperson;
(ii) any agreement concerning a partnership or joint venture;
(iii) any agreement with any Company Stockholder or any of such stockholder's affiliates plan (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 BusinessPlans);
(xi) any collective bargaining agreements;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) any agreement or plan, 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;
(xvi) any fidelity or surety bond or completion bond;
(xviiiii) any lease of personal property having a value individually in excess of $25,00050,000 individually or $100,000 in the aggregate;
(xviiiiv) 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;
(xix) 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;
(xxvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00050,000 individually or $100,000 in the aggregate;
(xxivii) 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 ordinary course of Businessthe Company’s business;
(xxiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to Indebtedness or otherwise the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiiix) any purchase order or contract for or other commitment obligating the Company or the Subsidiary to purchase or sell materials, supplies, equipment or services involving in excess of raw materials involving $10,000 50,000 individually or more$100,000 in the aggregate;
(xxivx) 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 marketing venture, strategic alliance or development 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;
(xxvxvii) any agreement pursuant to which the Company has granted or may grant in the futureprofit sharing, to any partystock option, a source-code license or option stock purchase, stock appreciation, deferred compensation, severance or other right to use plan or acquire source-code,arrangement for the benefit of the Company’s or the Subsidiary’s current or former directors, managers, officers, employees and consultant;
(xxvixviii) any agreement 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 Company has developed and/or delivered aggregate for the same software program exceeds $25,000 in either one-time or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Propertyannual license fee or support/maintenance payments; or
(xxviixix) 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as set forth in Part 2.12(bon Section 2.14(b) of the Company Disclosure LetterSchedule, with respect to each such agreement: (A) the agreementMaterial Contract is a legal, with respect to 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's , 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 the Principal Stockholders' Knowledge, all other parties thereto, is legal, valid, binding, enforceable, similar laws affecting creditors’ rights generally and by general principles of equity) and in full force and effect in all respects; (B) neither effect. Neither the Company nornor the Subsidiary, as applicable, and, to the Knowledge of the Company's or the Principal Stockholders' Knowledge, any no other Party party to such Material Contract is in material breach or defaultdefault under any Material Contract, and to the Company’s Knowledge no event has occurred, 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 agreement; (C) Company nor the Subsidiary has, and, to the Knowledge of the Company, no Party has repudiated other party to such Material Contract has, given written notice rejecting any provision of the agreement; and (D) any Material Contract. Neither the Company does not have any reason to believe that nor the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss Subsidiary is disputing and, to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all Knowledge of the Company's rights under , no other party to such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment Material Contract is disputing, any provision of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required Material Contract. There are no forbearance programs in effect with respect to payany provision of any Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as contemplated by this Agreement or set forth on Schedule 2.16, neither the Company Disclosure Letter lists the following written or oral contractsnor any Subsidiary has, agreements, commitments and other arrangements to which the Company is a party to, or by which the Company or any of its assets is boundbound by:
(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);
(xia) any collective bargaining agreements;
(xiib) any agreements employment or arrangements consulting agreement, contract or commitment with any officer, employee, or member of the Company's Board of Directors or the Board of Directors of any Subsidiary, other than those that contain any severance pay are terminable at the will of the Company or post-employment liabilities or obligationsa Subsidiary, as the case may be;
(xiiic) 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;
(xive) any employment or consulting agreement, contract or commitment 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 CompanyCompany 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);
(xvf) 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;
(xvig) any fidelity or surety bond or completion bond;
(xviih) any agreement or group of related agreements for the lease of personal property having a value individually in excess of $25,000;
(xviiii) any agreement of indemnification or guarantyguaranty other than as set forth in the Form License, subject to such reasonable variations therein that are not individually materially adverse to the Company;
(xixj) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any personperson or entity;
(xxk) any agreement, contract or commitment agreement relating to the purchase of materials or capital expenditures and involving future payments in excess of $25,000;
(xxil) 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 Businessenterprise;
(xxiim) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or any Subsidiary or extension of credit, including guaranties referred credit to in clause (xviii) hereofthe Company or any Subsidiary;
(xxiiin) any purchase order or contract for agreement concerning confidentiality (other than those entered in the purchase ordinary and usual course of raw materials involving $10,000 or morebusiness);
(xxivo) any distribution, joint marketing or development agreementconstruction contracts;
(xxvp) 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 any agreements which provide for source code escrow arrangements;
(xxvir) 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 developed and/or delivered advanced or has received funds from loaned any Governmental Entity amount to develop and/or deliver any Intellectual Propertystockholder of the Company or any Subsidiary or any director, officer, employee, or consultant of the Company or any Subsidiary other than business travel advances in the ordinary and usual course of business, consistent with past practice; or
(xxviit) to the extent not reported on the Company Balance Sheet, any other agreement, contract or commitment 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)breached, Part 2.11(q)violated or defaulted under, Part 2.11(r)or received notice that it has breached, Part 2.12(a) and Part 2.21(b) violated or defaulted under, any of the Company Disclosure Letter and a written summary setting forth the terms and or conditions of each oral agreement referred any agreement, contract or commitment required to be set forth on any Company Schedule relating to the representations and warranties set forth in Section 2.14 or on Schedule 2.16 (any such parts of the Company Disclosure Letter (collectivelyagreement, all such agreements are referred to as the contract or commitment, a "ContractsCONTRACT"). 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, Each Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, and is not subject 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 default 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 has knowledge thereunder by any party obligated to paythe Company or a Subsidiary, as the case may be, pursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part Section 2.12(a) of the Company Disclosure Letter lists Schedule sets forth all contracts that are material to the following written business or oral contracts, agreements, commitments and other arrangements operations of the Company (including its subsidiaries) or which by their terms seek to limit or define those activities in which the Company and its subsidiaries is (or the Surviving Corporation would be) permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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;
(xiiii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiviv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xvv) 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 Agreementhereby or thereby;
(xvivi) any fidelity or surety bond or completion bond;
(xviivii) any lease of real or personal property having a value individually involving future payments in excess of $25,000, other than as set forth in Section 2.10(a) of the Company Schedule;
(xviiiviii) any agreement of indemnification indemnification, warranty, guaranty or guarantysuretyship or otherwise obligating the Company or any subsidiary to assume or incur any obligation or liability of a third party, except as described in Section 2.12(a)(vii) of the Company Schedule;
(xixix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xxx) any agreement, contract or commitment relating to capital expenditures and or involving future payments in excess of $25,00010,000 in any single year or in any specific circumstance;
(xxixi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets assets, properties or any interest in any business enterprise enterprise, in each case outside of the Ordinary Course ordinary course of Businessthe Company’s business;
(xxiixii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in clause subparagraph (xviiivi) hereofabove, other than the lines of credit described in Section 2.31 of the Company Schedule, all of which will be paid in full and terminated as of the Effective Time, unless Parent requests otherwise reasonably prior to such time;
(xxiiixiii) 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;
(xxivxiv) any construction contracts;
(xv) any distribution, joint marketing marketing, licensing or development agreement;
(xxvxvi) any agreement pursuant to which insurance policies, other than as described in Section 2.25 of 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,Schedules;
(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
(xxviixvii) any other agreement, contract or commitment that involves or could result in aggregate payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) The Company and its subsidiaries have not breached, violated or defaulted under, or received notice that it has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)breached, Part 2.11(q)violated or defaulted under, Part 2.11(r), Part 2.12(a) and Part 2.21(b) any of the Company Disclosure Letter and a written summary setting forth the terms and or conditions of each oral agreement referred any agreement, contract or commitment to in which it is a party or by which it or its assets or properties are or may be bound (any such parts of the Company Disclosure Letter (collectivelyagreement, all such agreements are referred to as the "Contracts"contract or commitment, a “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, Each Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither and is not subject to any breach, default or violation thereunder of which the Company nor, has knowledge by any party obligated to the Company's or the Principal Stockholders' Knowledge, any other Party is in breach or default, and no event Company pursuant thereto. The Company has occurred, which with notice or lapse of time would constitute a breach or defaultobtained, or permit termination, modification, or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have any reason will obtain prior to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, all necessary consents, waivers and approvals of parties to any Contract (including the Company will be permitted Material Contracts) as are required or prudent to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had obtain in connection with the Merger not occurred and without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which transactions contemplated hereby and by the Company would otherwise be required to payAncillary Agreements (the “Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (Valueclick Inc/Ca)
Agreements, Contracts and Commitments. (a) Part Except as set forth on Schedule 2.12(a) of ), the Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;collective bargaining agreements,
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;,
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xiviv) any employment or consulting agreement, contract or commitment 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;,
(xvv) 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;,
(xvivi) any fidelity or surety bond or completion bond;,
(xviivii) any lease of personal property having a value individually in excess of $25,000;100,000,
(xviiiviii) any agreement of indemnification or guaranty;,
(xixix) 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;,
(xxx) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000;100,000,
(xxixi) 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 ordinary course of Business;the Company's business,
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;,
(xxiiixiii) any purchase order or contract for the purchase of raw materials involving $10,000 100,000 or more;,
(xxivxiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement;,
(xxvxvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, 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
(xxviixvii) any other agreement, contract or commitment agreement that involves $25,000 100,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The days of notice. 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 delivered 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 Parent be set forth on Schedule 2.12(a) or Schedule 2.11(g) (any such agreement, contract or commitment, a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a"CONTRACT"), Part 2.11(q)other than breaches, Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as set forth in Part 2.12(b) of the Company Disclosure Letter, violations or defaults which have been resolved or cured with respect to each such agreement: (A) the agreement, with respect to the Company and, no further liability to the Company's and the Principal Stockholders' Knowledge, all other parties thereto, . Each Contract is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (B) neither the Company norSchedule 2.12(b), is not subject 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 default thereunder 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 has knowledge by any party obligated to paythe Company pursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. Section 2.10 of the Seller Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of, and Seller has delivered or made available to Buyer, or will deliver or make available to Buyer prior to the Final Diligence Delivery Date, true and complete copies of (collectively, the “Material Contracts”):
(a) Part 2.12(aeach Contract of the Company or the Company Subsidiary involving aggregate annual payments by or to the Company or the Company Subsidiary, of more than $50,000, other than any Contract set forth on Section 2.8(c), 2.15(b) or 2.16(a) of the Seller Disclosure Letter;
(b) (i) all Contracts pursuant to which any Indebtedness of the Company Disclosure Letter lists or the following written Company Subsidiary is outstanding or oral contractsmay be incurred, agreements(ii) all Contracts of or by the Company or the Company Subsidiary guaranteeing any debt obligations of any other person (other than the Company or the Company Subsidiary), commitments including the respective aggregate principal amounts outstanding as of the date hereof, and other (iii) all Contracts involving any “keep well” arrangements or pursuant to which the Company or the Company Subsidiary has agreed to maintain any financial statement condition of another person;
(c) all Contracts pursuant to which the Company or the Company Subsidiary has agreed not to, or which, following the consummation of the transactions contemplated by this Agreement, could restrict the ability of Buyer, including the Company and the Company Subsidiary, to compete with any person in any business or in any geographic area or to engage in any business or other activity, including any restrictions relating to “exclusivity” or any similar requirement in favor of any person other than the Company or the Company Subsidiary or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging;
(d) all Contracts to which the Company or the Company Subsidiary is party granting any license to, or franchise in respect of, any material right, property or other asset;
(e) all joint venture, limited liability company, partnership or other similar Contracts (including all amendments thereto) in which the Company or the Company Subsidiary holds an interest;
(f) all Contracts with any Governmental Entity;
(g) all Contracts with any Affiliate of the Company or the Company Subsidiary;
(h) all Contracts that provide for employment or consulting arrangements, other than Contracts covered in clause (g); and
(i) all Contracts that provide for any payment or accrual of benefits in connection with a change in control of the Company or the Company Subsidiary, whether in connection with the transactions contemplated by this Agreement or otherwise. Each of the Company and the Company Subsidiary has performed all material obligations required to be performed by it to date under each Material Contract. Each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or the Company Subsidiary, as the case may be, and to the knowledge of Seller, the other parties thereto, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity. None of the Company, the Company Subsidiary or, to the knowledge of Seller, any other party is in breach or violation of or in default under (nor, to the knowledge of Seller, does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Material Contract to which it is a party or by which the Company, the Company Subsidiary or any of its their respective properties or other assets is bound:
(i) any agreement under which , except for violations or defaults that individually or in the consequences of a default or termination could aggregate have not had and are not reasonably likely to 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) 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) daysEffect.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(aAs of the date of this Agreement, except as set forth in Section 2.15(a) of the Company Disclosure Letter lists Schedule (specifying the following written or oral contractsappropriate subparagraph), agreementsand except for this Agreement and the transactions contemplated hereby, commitments and other arrangements to which the Company is not a party or to, nor is it bound by which the Company or any of its assets is bound:the following (each, a “Material Contract”):
(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 servicesemployment, 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment contractor or consulting agreement, agreement or contract or commitment with an employee or individual consultant consultant, contractor or salesperson salesperson, or any consulting or sales agreementservices agreement that is not terminable by the Company at will and without material penalty, contract or commitment under other than employment agreements in foreign jurisdictions which any firm or other organization provides services to the Companyprovide for severance payments consistent with statutory requirements;
(xvii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually or equipment requiring annual lease payments in excess of $25,00050,000 individually or $350,000 in the aggregate;
(xviiiv) 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 or other product guarantees 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;
(xixvi) any agreement, contract or commitment containing any covenant limiting (excluding commitments made to customers in the freedom ordinary course of the Company to engage in any line of business or to compete with any person;
(xxbusiness) any agreement, contract or commitment relating to capital expenditures and involving requiring future payments in any calendar year in excess of $25,000100,000 individually or $300,000 in the aggregate;
(xxivii) 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 Businessthe Company’s business, consistent with past practices;
(xxiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiiix) any purchase order agreement with a supplier of inventory or contract services that represents one of the ten largest suppliers of the Company (based on payments made) for the purchase of raw materials involving $10,000 or moreany fiscal year after March 1, 2009;
(xxivx) any distributionagreement containing covenants or other obligations granting or containing any current or future commitments restricting the operation or scope of the Company’s businesses, joint marketing including, without limitation exclusivity, non-compete, or development agreement“most favored nations” restrictions;
(xxvxi) all agreements with each of the Company’s (a) top twenty (20) largest sources of revenue for any fiscal year after March 1, 2009 that are commercial customers, including without limitation value added resellers, other resellers, distributors, original equipment manufacturers and business partners, but excluding agreements with direct end-user customers in the “professional market” (e.g., law firms and other professional service organizations) and (b) top twenty (20) largest sources of revenue for the Company for any fiscal year after March 1, 2009 that are end-user customers in the professional market;
(xii) any agreement pursuant contracts, licenses and agreements to which the Company has granted is a party with respect to any Technology or may grant Intellectual Property Rights, including without limitation any in-bound licenses, out-bound licenses and cross-licenses, other than standard outbound end user licenses or other customer agreements entered into in the futureordinary course of business, to any partyconsistent with past practice (provided that for purposes of Section 2.15(b), a sourceall such standard outbound end user licenses and customer agreements shall be considered Material Contracts) and excluding commercial “off-code the-shelf” software with aggregate 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 Propertyfees of less than $10,000; or
(xxviixiii) any other agreement, agreement or contract or commitment that involves requires future payment in any calendar year of more than $25,000 150,000 or more or than $250,000 during the remaining term of the agreement and is not cancelable by the Company without material penalty within thirty ninety (3090) days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Nuance Communications, Inc.)
Agreements, Contracts and Commitments. (a) Part 2.12(a) of the Company Disclosure Letter lists the following written Except as required by applicable law, contemplated by this Agreement, or oral contractsas set forth on Schedule 2.13, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to, and is boundnot bound by:
(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);
(xia) any collective bargaining agreements;
(xiib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiic) 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;
(xivd) any agreement, contract, or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise;
(e) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other organization provides services to the CompanyCompany not terminable by the Company on thirty days notice without liability;
(xvf) 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;
(xvig) any fidelity or surety bond or completion bond;
(xviih) any agreement or group of related agreements for the lease of personal property having a value individually in excess of $25,00035,000 to or from any entity;
(xviiii) any agreement of indemnification or guaranty;
(xixj) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any personperson or entity;
(xxk) 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 $25,000business, consistent with past practice;
(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 Business;
(xxiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or extension of credit, including guaranties referred credit to in clause (xviii) hereofthe Company;
(xxiiim) any purchase order or contract for the purchase of raw materials involving $10,000 or moreagreement concerning confidentiality;
(xxivn) any construction contracts;
(o) any distribution, joint marketing or development agreement;
(xxvp) any agreement pursuant to which the Company has granted or may grant in the future, to any party, 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
(xxviiq) to the extent not reported on the Company Balance Sheet, any other agreement, contract or commitment 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 delivered 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 Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(abe set forth on Schedule 2.12(c), Part 2.11(qSchedule 2.12(d), Part 2.11(rSchedule 2.12(e), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and Schedule 2.12(f), or Schedule 2.13 (any such agreement, contract or commitment, a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "ContractsContract"). 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, Each Contract is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (B) neither the Company norSchedule 2.13, is not subject 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 default thereunder 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 has knowledge by any party obligated to paythe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Adept Technology Inc)
Agreements, Contracts and Commitments. (a) Part 2.12(aSchedule 4.18(a) hereto sets forth a complete and accurate list of (A) each Company Contract providing for payments (present or future) to the Company in excess of $25,000 in the aggregate, under which or in respect of which the Company presently has any liability or obligation of any nature whatsoever (absolute, contingent or otherwise) in excess of $25,000, or that otherwise is material to the businesses, operations, assets or condition (financial or otherwise) of the Company Disclosure Letter lists and (B) without limitation of clause (A), each of the following Company Contracts (the “Material Company Contracts”):
(i) any mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money from the Company by any officer, director, stockholder or holder of derivative securities of the Company (each such person, an “Insider”);
(ii) any mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money from an Insider by the Company;
(iii) any guaranty, direct or indirect, by the Company, a Subsidiary or any Insider of the Company of any obligation for borrowings, or otherwise, excluding endorsements made for collection in the ordinary course of business;
(iv) any Company Contract of employment or management;
(v) any Company Contract made other than in the ordinary course of business or (i) providing for the grant of any preferential rights to purchase or lease any asset of the Company or (ii) providing for any right (exclusive or non-exclusive) to sell or distribute, or otherwise relating to the sale or distribution of, any product or service of the Company;
(vi) any obligation to register any shares of the capital stock or other securities of the Company with any Governmental Entity;
(vii) any obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons;
(viii) any collective bargaining agreement with any labor union;
(ix) any lease or similar arrangement for the use by the Company of real property or personal property (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business where the annual lease payments are less than $10,000);
(x) any Company Contract to which any Insider of the Company is a party; and
(xi) any offer or proposal which, if accepted, would constitute any of the foregoing.
(b) Each Material Company Contract was entered into at arms’ length and in the ordinary course, is in full force and effect and, to the knowledge of the Company and the Members, is valid and binding upon and enforceable against each of the parties thereto (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies), except where same has not had and would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company and the Members, no other party to a Material Company Contract is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material Company Contracts and offers and proposals, which, if accepted, would constitute Material Company Contracts (or written summaries in the case of oral Material Company Contracts or oral contractsoffers and proposals, agreementswhich if accepted, commitments would constitute Material Company Contracts), and of all outstanding offers and proposals of the Company have been heretofore delivered to Parent or Parent’s counsel.
(c) Except as set forth in Schedule 4.18(c), neither the Company nor, to the knowledge of the Company and the Members, any other arrangements party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Company Contract, and no party to any Material Company Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are reasonably likely to have a Material Adverse Effect on the Company. Each Material Company Contract to which the Company is a party or by which the Company or any of it is bound that has not expired by its assets terms is bound:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payeffect.
Appears in 1 contract
Sources: Merger Agreement (Global Services Partners Acquisition Corp.)
Agreements, Contracts and Commitments. (a) Part Except as set forth in Section 2.12(a) of the Company Shuttle Disclosure Letter lists the following written or oral contractsLetter, agreementseach of Shuttle and its subsidiaries does not have continuing obligations under, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;collective bargaining agreements,
(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;
(xii) any agreements or arrangements that contain any severance pay or pay, post-employment liabilities or obligations;obligations or "golden parachute" provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xiviv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services where the amount payable by Shuttle or the relevant subsidiary is reasonably expected to the Company;exceed $50,000 or its equivalent in applicable foreign currency,
(xvv) 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,
(xvivi) any fidelity or surety bond or completion bond;,
(xviivii) any lease of personal property having a value annual lease payments individually in excess of $25,000;,
(xviiiviii) any agreement of indemnification indemnification, warranty or guaranty;guaranty other than in the ordinary course of business,
(xixix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Shuttle to engage in any line of business or to compete with any person;,
(xxx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000;50,000 in the aggregate,
(xxixi) 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 ordinary course of Business;Shuttle's business or any subsidiary's business,
(xxiixii) any mortgages, indenturesdebentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;,
(xxiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxivxiii) any distribution, joint marketing or development agreement;,
(xxvxiv) any agreement pursuant agreement, contract or commitment with any customer or vendor which, during the last two financial years of Shuttle ended on June 30, 1998, accounted, or is expected to which the Company has granted account during Shuttle's current financial year, for more than 5% of Shuttle's revenue or may grant in the futuretrade payables, to any partyas applicable, 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
(xxviixv) any other agreement, contract or commitment that involves $25,000 75,000 or more or is not cancelable cancellable without penalty within thirty sixty (3060) days.
(b) The Company has delivered to Parent Except for any alleged breaches, violations and defaults, and events that would constitute a correct and complete copy breach, violation or default with the lapse of each written agreement (as amended to date) listed in Part 2.10(a)time, Part 2.11(q)giving of notice, Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectivelyor both, all such agreements are referred to as the "Contracts"). Except as set forth noted in Part Section 2.12(b) of the Company Shuttle Disclosure Letter, with respect to each such agreement: (A) neither Shuttle nor any of its subsidiaries has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, with respect to contract or commitment set forth in Section 2.11 or Section 2.12(a) of the Company and, to the Company's and the Principal Stockholders' Knowledge, all other parties thereto, Shuttle Disclosure Letter (a SHUTTLE CONTRACT). Each Shuttle Contract is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (BSection 2.3(b) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c2.12(b) of the Company Shuttle Disclosure Letter, following the Effective Time, the Company will be permitted is not subject to exercise all any default thereunder of the Company's rights under such agreements which any Exchanging Shareholder is aware by any party obligated to the same extent the Company would have been able to had the Merger not occurred and without the payment of Shuttle or any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to paysubsidiary pursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(aSection 2.10(a) of the Company Disclosure Letter Schedule lists each of the following written or oral contracts, agreements, commitments and other arrangements Contracts to which the Company is a party Seller Parties are bound as of the date of this Agreement, that relate to the operation of the Business or by which the Company or any of its assets is bound:Purchased Assets (the “Material Contracts”):
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment independent contractor or consulting agreement, contract Contract or commitment with an employee or independent contractor, individual consultant or non-employee salesperson (in all cases in other than Seller Parties’ standard form), or any consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization that provides services to the Companyfor annualized compensation in excess of $100,000;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xviiii) any lease of personal property having a value individually in excess of $25,000property;
(xviiiiii) any agreement of indemnification or guaranty;
(xixiv) 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;
(xx) any agreement, contract or commitment relating to capital expenditures and Contract involving future payments in excess of $25,000100,000 or that requires the payment of royalties in excess of $100,000;
(xxiv) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets (tangible or any interest intangible) or properties of the Business not in any business enterprise outside the Ordinary Course of Business;
(xxiivi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or money, the extension of credit, including guaranties referred to in clause (xviii) hereofcredit or the continuing or future grant of any Lien;
(xxiiivii) any purchase order Contract containing covenants or contract for other obligations granting or containing any current or future commitments regarding exclusive rights, non‑competition, “most favored nations,” restriction on the purchase operation or scope of raw materials involving $10,000 its businesses or moreoperations, or similar terms;
(xxivviii) any dealer, distribution, marketing, development or joint marketing or development venture agreement;
(xxvix) any agreement pursuant to which the Company has granted sales representative, original equipment manufacturer, manufacturing, value added, marketing, remarketer, reseller, or may grant in the futureindependent software vendor, to any party, a source-code license or option distribution or other right to use or acquire source-code,agreement;
(xxvix) any agreement pursuant Contract with any customer of the Business;
(xi) IP Contracts and any agreement, Contract or commitment that obligates the Business to which provide future deliverables to any Person including, without limitation, licenses to Transferred IP or the Company has developed and/or delivered performance of services;
(xii) any Contract that restricts or has received funds prohibits Seller Parties from hiring or soliciting for hire any Governmental Entity individual to develop and/or deliver any Intellectual Propertyperform employment or consulting services for the Business; or
(xxviixiii) any other agreement, contract or commitment Assumed Contract that involves $25,000 or more or is does not cancelable without penalty within thirty (30) dayshave a limitation of liability arising from direct damages.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(bSection 2.10(b) of the Company Disclosure Letter Schedule sets forth all necessary consents, waivers and a written summary setting forth approvals of parties in connection with the terms and conditions of each oral agreement referred Asset Purchase or the other transactions contemplated by this Agreement or any Related Agreement.
(c) There is no breach or default (or right to in such parts terminate, accelerate, or modify any rights of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as set forth in Part 2.12(b) counterparty or obligations of any of the Company Disclosure LetterSeller Parties or their Affiliates, with respect to each such agreement: (Aor following the Closing, the Buyer Parties) under any Assumed Contract, nor will 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 in all respects; (B) neither the Company nor, to the Company's execution of this Agreement or the Principal Stockholders' Knowledgeconsummation of the transactions contemplated herein give rise to any such breach, 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 terminationright. The Seller Parties and their Affiliates have not received any written notice from any counter party to any Assumed Contract, modificationnor do the Seller Parties or their Affiliates have Knowledge of any facts or circumstances that would reasonably be expected to result in any claim, of any breach or default by the Seller Parties or their Affiliates under any Assumed Contract, or acceleration, under the agreement; (C) no Party has repudiated any provision right of the agreement; and (D) the Company does not have applicable counterparty to terminate, accelerate, or modify any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt rights of the consents set forth in Part 6.3(c) counterparty or obligations of any of the Company Disclosure LetterSeller Parties or their Affiliates, or, following the Effective TimeClosing, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payBuyer Parties.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of the Company Disclosure Letter lists the following written or oral contractsExcept as contemplated by this Agreement, agreements, commitments and other arrangements to which the Company is not a party to, or by which the Company or any of its assets is boundbound by:
(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 servicesemployment, 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor, or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xvii) 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually involving payments in excess of $25,00010,000 individually or $20,000 in the aggregate;
(xviiiv) 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 guarantymisappropriation by the Company or such other person of the Intellectual Property Rights of any person other than the Company, other than (i) the Company’s standard customer warranties, copies of which have been made available to Buyer (ii) the public or open source technology listed in Section 4.15(s) of the Company Disclosure Schedule, and (iii) other non-exclusive licenses and related agreements with respect thereto of the Company Products to end users pursuant to written agreements that have been entered into in the ordinary course of business that do not materially differ in substance from the Company’s standard form(s) of end user license including attachments (which is or are included in Section 4.15(l) of the Company Disclosure Schedule);
(xixvi) 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;
(xx) any agreement, contract or commitment Contract relating to capital expenditures by the Company and involving future payments in excess of $25,00010,000 individually or $20,000 in the aggregate;
(xxivii) 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 ordinary course of Businessthe Company’s business;
(xxiiviii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contract relating to the borrowing of money or extension of credit, including guaranties referred to credit other than accounts receivable and payable in clause (xviii) hereofthe ordinary course of business;
(xxiiiix) any purchase order or contract for the purchase of raw materials involving in excess of $10,000 individually or more$20,000 in the aggregate;
(xxivx) any distributiondealer, joint marketing marketing, strategic alliance, affiliate or development agreement;
(xxvxi) any agreement pursuant Contract to alter the Company’s interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company has granted directly or may grant in the future, to indirectly holds any party, a source-code license or option or other right to use or acquire source-code,interest;
(xxvixii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement pursuant to which for use or distribution of the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual PropertyProducts; or
(xxviixiii) any other agreement, contract or commitment 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) The Each Material Contract to which the Company has delivered to Parent is a correct party or any of its properties or assets (whether tangible or intangible) is subject is a valid and complete copy of each written binding agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of Company, enforceable against each oral agreement referred to in such parts of the Company Disclosure Letter (collectivelyparties thereto in accordance with its terms, all such agreements are referred subject to as the "Contracts"). Except as set forth Bankruptcy Exception, and is in Part 2.12(b) of the Company Disclosure Letter, with respect to each such agreement: (A) the agreement, full force and effect with respect to the Company and, to the Company's and Knowledge of the Principal Stockholders' Knowledge, all other parties thereto, is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, to the Company's or the Principal Stockholders' KnowledgeShareholders, any other Party party thereto. The Company is in breach compliance with and has not breached, violated or defaultdefaulted under, and no or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any such Contract, nor to the Knowledge of the Shareholders is any party obligated to the Company pursuant to any such Contract subject to any breach, violation or default thereunder, nor do the Shareholders have Knowledge of any event has occurredthat with the lapse of time, which with giving of notice or lapse of time both would constitute such a breach breach, violation or default, or permit termination, modification, or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) default by the Company does not or any such other party. True and complete copies of each Contract disclosed in the Company Disclosure Schedule or required to be disclosed pursuant to this Section 4.16 (each a “Material Contract” and collectively, the “Material Contracts”) have any 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 unable to fulfill, when due, all of its obligations under the Material Contracts that remain to be performed after the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(cdate hereof.
(d) All outstanding indebtedness of the Company Disclosure Letter, following the Effective Time, the Company will may be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and 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 paypenalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as set forth on the Company Disclosure Letter lists Schedule, or included in the following written Current Balance Sheet, or oral contractsfootnotes thereto, agreementsprovided to the Parent, commitments and other arrangements to which the Company does not have, is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xvii) 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually in excess of USD $25,00025,000 individually or USD $50,000 in the aggregate;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xxv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of USD $25,00025,000 individually or USD $50,000 in the aggregate;
(xxivi) 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 Businessthe Company's business;
(xxiivii) any mortgages, indentures, loans or credit agreements, security agreements licensing agreement or other agreements or instruments relating contract with respect to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereofIntellectual Property Rights;
(xxiiiviii) any purchase order joint venture, partnership, and other contract involving a sharing of profits, losses, costs, or contract for liabilities by the purchase of raw materials involving $10,000 or moreCompany with any third party;
(xxivix) any distributioncontract 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, joint marketing other than customary non-disclosure and confidentiality obligations contained in non-disclosure agreements, license agreements or development agreementcustomer 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;
(xxvxi) any agreement pursuant to which contract entered into other than in the ordinary course of business that contains or provides for an express undertaking by 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,be responsible for consequential damages;
(xxvixii) any agreement pursuant oral or written warranty, guaranty, and or other similar undertaking with respect to which product or contractual performance sold or extended by the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Propertyother than in the ordinary course of business; or
(xxviixiii) any other agreementamendment, 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) All of the Company Disclosure Letter and a written summary setting Contracts set forth the terms and conditions of each oral agreement referred or required to in such parts of be set forth on the Company Disclosure Letter Schedule (collectively, all such agreements are referred to as the "Contracts"). Except as set forth ) are valid, binding and enforceable in Part 2.12(b) accordance --------- with their respective terms, subject to laws of the Company Disclosure Lettergeneral application relating to bankruptcy, with respect to each such agreement: (A) the agreement, with respect to the Company and, to the Company's insolvency and the Principal Stockholdersrelief of debtors and other laws of general application effecting enforcement of creditors' Knowledgerights generally, all rules of law governing specific performance, injunctive relief or other parties thereto, is legal, valid, binding, enforceableequitable remedies, and limitations of public policy, 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 respects; (B) neither 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 nor, to the Company's or the Principal Stockholders' Knowledge, any other Party is in breach or default, and Schedule; no event has occurredoccurred which, which with the passage of time or the giving of notice or lapse of time both, would constitute result in a default, breach or default, or permit termination, modification, or acceleration, event of noncompliance by the Company in any material respect under the agreementany such Contract; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have any reason present expectation or intention of not fully performing on a timely basis in all material respects all such obligations required to believe that be performed by the service called 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 penalty, right of set-off or other charge by the other party thereto for thereunder canlate 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 supplied in accordance with its terms 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 without resulting in a loss to the Company. Subject to receipt correct copy of each of the consents written Contracts that are set forth in Part 6.3(c) of on the Company Disclosure LetterSchedule, following the Effective Timetogether with all amendments, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment of any additional amounts waivers or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to paychanges thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lynuxworks Inc)
Agreements, Contracts and Commitments. Except as set forth in Section 2.16 of the Disclosure Schedule (specifying the appropriate paragraph):
(a) Part 2.12(a) of the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the The Company is not a party or by which the Company or any of its assets to, nor is boundit bound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant to grant any severance or salesperson termination pay (in cash or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Companyotherwise);
(xvii) 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually in excess of $25,00025,000 individually or $50,000 in the aggregate;
(xviiiv) any agreement of indemnification or guarantyguaranty outside of the ordinary course of business;
(xix) 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;
(xxvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00025,000 individually or $50,000 in the aggregate;
(xxivii) 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 Businessthe Company’s business;
(xxiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiiix) any purchase order or contract for the purchase of raw materials involving in excess of $10,000 25,000 individually or more$50,000 in the aggregate;
(xxivx) any construction contracts;
(xi) any dealer, distribution, joint marketing marketing, strategic alliance, affiliate or development agreement;
(xxvxii) any agreement agreement, contract or commitment to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xiii) any agreement, contract or commitment pursuant to which the Company has granted undertaken to, 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 receipt of revenue is contingent upon, the delivery of products or service offerings not in commercial existence as of the date hereof, and including those which are contingent upon the release of any new product or new version of an existing product;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Propertyother than Standard License Agreements; or
(xxviixv) any other agreement, contract or commitment that involves $25,000 individually or $50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) The Each Contract to which the Company has delivered to Parent is a correct party or any of its properties or assets (whether tangible or intangible) is subject is a valid and complete copy of each written binding agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of enforceable against each oral agreement referred to in such parts of the Company Disclosure Letter (collectivelyparties thereto in accordance with its terms, all such agreements are referred to as the "Contracts"). Except as set forth and is in Part 2.12(b) of the Company Disclosure Letter, with respect to each such agreement: (A) the agreement, full force and effect 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 in all respects; (B) neither the Company nor, to Knowledge of the Company's or the Principal Stockholders' Knowledge, any other Party party thereto. The Company is in breach material compliance with and has not materially breached, violated or default, and no event has occurred, which with notice or lapse of time would constitute a breach or defaultdefaulted under, or permit terminationreceived notice that it has materially breached, modificationviolated or defaulted under, or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have terms or conditions of any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss such Contract, nor to the Company. Subject to receipt of the consents set forth in Part 6.3(c) Knowledge of the Company is any party obligated to the Company pursuant to any such Contract subject to any material breach, violation or default thereunder, nor does the Company have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a material breach, violation or default by the Company or any such other party. True and complete copies of each Contract disclosed in the Disclosure LetterSchedule or required to be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, following the Effective Time“Material Contracts”) have been delivered to Parent.
(c) The Company has fulfilled all material obligations required pursuant to each Contract to have been performed by 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 its obligations under the Company's rights under such agreements Material Contracts that remain to be performed after the same extent date hereof.
(d) All outstanding indebtedness of the Company would have been able to had the Merger not occurred and 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 paypenalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) Other than those listed in Section 3.16 of the Company IWL Disclosure Letter lists the following written or oral contractsSchedule, agreementsIWL does not have, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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);
(xia) any collective bargaining agreementsagreement;
(xiib) any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations;
(xiiic) any bonus, deferred compensation, incentive compensation, option, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(xivd) any employment or consulting agreement, contract or commitment (other than employment letters) 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, not terminable by IWL on thirty days notice without liability;
(xve) 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;
(xvif) any insurance policy, fidelity or surety bond or completion bondbond not listed in Section 3.21 of the IWL Disclosure Schedule;
(xviig) any lease of personal property having a value individually in excess of $25,000;
(xviiih) any agreement of indemnification or guarantyguaranty not entered into in the ordinary course of business;
(xixi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company IWL to engage in any line of business or to compete with any personPerson;
(xxj) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000;
(xxik) any agreement, contract or commitment relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Businessenterprise;
(xxiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in the clause (xviiih) hereof;
(xxiiim) any purchase order or contract for the purchase of raw materials or acquisition of assets involving $10,000 25,000 or moremore in any single instance or $100,000 or more in the aggregate;
(xxivn) any construction contracts involving $25,000 or more in any single instance or $100,000 or more in the aggregate;
(o) any distribution, joint marketing or development agreementagreements;
(xxvp) any lease for switches or any other machinery, equipment or other personal property involving payment of aggregate rentals in excess of $25,000;
(q) any contract pursuant to which IWL has access to the telephone network of another Person other than IWL's internal commercial telephone service and any contracts for the resale of any network capacity of IWL;
(r) any agreement, contract, lease or easement pursuant to which IWL has the right of way to use any premises or real property to locate and/or install fiber lines on, under or through such premises or real property;
(s) any agreement pursuant or commitment obligating IWL to deliver any product or service at a price which does not cover the Company has granted cost of (including labor, materials and production overhead), plus a reasonable profit margin, for such product or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,service;
(xxvit) any joint venture, partnership or other cooperative arrangement or agreement pursuant to which the Company has developed and/or delivered involving a sharing of profits or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property; orlosses;
(xxviiu) any other agreement, agreement contract or commitment that which involves $25,000 or more or and is not cancelable without penalty within thirty (30) days.; or
(bv) The Company any agreement which is otherwise material to IWL's business. IWL has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)not breached, Part 2.11(q)or received any claim or threat that it has breached, Part 2.11(r), Part 2.12(a) and Part 2.21(b) any of the Company Disclosure Letter and a written summary setting forth the terms and or conditions of each oral agreement referred any material agreement, contract or commitment to in such parts of the Company Disclosure Letter which it is bound (collectivelyincluding, all such agreements are referred to as the "Contracts"). Except as but not limited to, those set forth in Part 2.12(b) Section 3.16 or any other section of the Company IWL Disclosure Letter, with respect Schedule) in such manner as would permit any other party to each such agreement: (A) cancel or terminate the same. Each agreement, with respect contract or commitment to which IWL is party and that is required to be set forth in the Company and, to the Company's and the Principal Stockholders' Knowledge, all other parties thereto, IWL Disclosure Schedule is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither and, except as otherwise disclosed, is not subject to any material default thereunder by any party thereto. IWL is not bound by any material contract, agreement, license, lease or other commitment, a copy of which has not been previously provided or made available to the Company norand the Partnership. IWL after making an inquiry of all of its officers, to the Company's or the Principal Stockholders' Knowledgedirectors, any other Party is in breach or default, shareholders 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 appropriate employees does not have any reason to believe expect that any change may occur in the service called for thereunder cannot be supplied in accordance relationships of IWL with its terms and without resulting in suppliers or customers as a loss to the Company. Subject to receipt result of the consents set forth in Part 6.3(c) Mergers or the Interest Exchange, which change would be a Material Adverse Effect on IWL. No supplier of or customer of IWL has indicated within the past year that it will stop, or decrease the rate of supplying or purchasing materials, products, or services to or from IWL, as a result of the Company Disclosure LetterMergers or the Interest Exchange. Except as described in Section 3.3, following no consents, waivers or approvals under any of IWL's material agreements, contracts, licenses or leases are necessary in order to preserve the Effective Timebenefits thereunder for the Surviving Corporation or otherwise to avoid any breach, the Company will be permitted to exercise all default or right of termination or other right as a result of the Company's rights under such agreements to Mergers or 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 payInterest Exchange.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as set forth in Section 2.16 of the Disclosure Schedule (specifying the appropriate paragraph):
(a) Part 2.12(a) of neither the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company nor any of its Subsidiaries is a party or by which the Company or any of its assets to, nor is boundit bound by:
(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 servicesemployment, 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor, or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xvii) 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually in excess of $25,00010,000 individually or $50,000 in the aggregate;
(xviiiv) any agreement of indemnification or guaranty;
(xix) 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;
(xxvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000 individually or $50,000 in the aggregate;
(xxivii) 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 Businessthe Company’s business;
(xxiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiiix) any purchase order or contract for the purchase of raw materials involving in excess of $10,000 individually or more$50,000 in the aggregate;
(xxivx) any construction contracts;
(xi) any dealer, distribution, joint marketing marketing, strategic alliance, affiliate or development agreement;
(xxvxii) any agreement pursuant 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 has granted directly or may grant in the future, to indirectly holds any party, a source-code license or option or other right to use or acquire source-code,interest;
(xxvixiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement pursuant to which for use or distribution of the products, technology or services of the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property; orof its Subsidiaries;
(xxviixiv) 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) 30 days.
(b) The Each Contract to which the Company has delivered to Parent or any of its Subsidiaries is a correct party or any of their respective properties or assets (whether tangible or intangible) is subject is a valid and complete copy of each written binding agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth or its Subsidiaries, as the terms and conditions of case may be, enforceable against each oral agreement referred to in such parts of the Company Disclosure Letter (collectivelyparties thereto in accordance with its terms, all such agreements are referred to as the "Contracts"). Except as set forth and is in Part 2.12(b) of the Company Disclosure Letter, with respect to each such agreement: (A) the agreement, full force and effect with respect to the Company or the applicable Subsidiary and, to the Company's Knowledge of the Company and the Principal Stockholders' Knowledge, all other parties thereto, is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, to the Company's or the Principal Stockholders' KnowledgeShareholders, any other Party is party thereto. The Company and each of its Subsidiaries are in breach compliance with and have not breached, violated or default, and no event has occurred, which with notice or lapse of time would constitute a breach or defaultdefaulted under, or permit terminationreceived notice that they have breached, modificationviolated or defaulted under, or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have terms or conditions of any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss such Contract, nor to the Company. Subject to receipt of the consents set forth in Part 6.3(c) Knowledge of the Company or the Shareholders is any party obligated to the Company or any of its Subsidiaries pursuant to any such Contract subject to any breach, violation or default thereunder, nor does the Company or any Shareholder have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company, its Subsidiaries or any such other party. True and complete copies of each Contract disclosed in the Disclosure LetterSchedule or required to be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, following the Effective Time“Material Contracts”) have been delivered to Purchaser.
(c) The Company and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the date hereof, and to the Knowledge of the Company and the Shareholders, without giving effect to the Acquisition, the Company will be permitted to exercise fulfill, when due, all of its obligations under the Company's rights under such agreements Material Contracts that remain to be performed after the same extent date hereof.
(d) All outstanding indebtedness of the Company would have been able to had the Merger not occurred and or 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 paypenalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(aThe Company does not have, or is not bound by:
(i) of the Company Disclosure Letter lists the following written or oral any contracts, licenses and agreements, commitments and other arrangements to which the Company is a party with respect to any Intellectual Property with a value or by which the Company or any cost in excess of its assets is bound:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;$25,000, other than "shrink wrap" and similar commercial end- user licenses.
(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;
either (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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract contract, or commitment with an employee or employee, individual consultant consultant, or salesperson or (y) any consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to the Company;organization,
(xviii) except as contemplated by Section 1.6(e), any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;,
(xviiv) any fidelity or surety bond or completion bond;,
(xviiv) any lease of personal property having a value individually in excess of $25,000;20,000,
(xviiivi) any agreement of indemnification indemnification, to hold harmless or guaranty;; or any obligation or liability with respect to infringement or misappropriation by the Company or any other person of the Intellectual Property rights of another person,
(xixvii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of its current or anticipated business or to compete with any person;,
(xxviii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000;10,000,
(xxiix) 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 Business;the Company's business,
(xxiix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;,
(xxiiixi) any purchase order or contract for the purchase of raw materials involving $10,000 20,000 or more;,
(xxivxii) any construction contracts,
(xiii) 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
(xxviixiv) 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 delivered 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 described above to Parent which it is a correct and complete copy of each written agreement party or by which it is bound (as amended to date) listed in Part 2.10(aany such agreement, contract or commitment, a "Contract"), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) nor is the Company or any of the Company Disclosure Letter and Principal Shareholders aware of any event that would constitute such a written summary setting forth breach, violation or default with the terms and conditions lapse of each oral agreement referred to in such parts time, giving of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts")notice or both. 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, Each Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, and is not 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) knowledge of the Company Disclosure Letter, following and the Principal Shareholders subject to any default thereunder by any party obligated to the Company pursuant thereto. Following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and 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.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Failure Group Inc)
Agreements, Contracts and Commitments. Except for Employee Plans (a) Part 2.12(a) of as defined in Section 2.21), as contemplated by this Agreement or as set forth on Schedule 2.12, the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments does not have and other arrangements to which the Company is not a party or by which the Company or any of its assets is boundto:
(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);
(xia) any collective bargaining agreementsagreement;
(xiib) any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations;
(xiiic) any bonus, deferred compensation, incentive compensation, pension, profit profit- sharing or retirement plans, or any other employee benefit plans or arrangements;
(xivd) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment 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;
(xve) 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;
(xvif) any fidelity or surety bond or completion bond;
(xviig) any lease of personal property having a value individually in excess of $25,000property;
(xviiih) any agreement of indemnification or guaranty;
(xixi) 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;
(xxj) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000obligations;
(xxik) any agreement, contract or commitment relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Businessenterprise;
(xxiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiih) hereof;
(xxiiim) any purchase order or contract for the purchase of raw materials involving $10,000 or moreacquisition of assets;
(xxivn) any construction contracts;
(o) 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
(xxviip) 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epic Design Technology Inc /Ca/)
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as set forth on ------------------------------------- Schedule 2.12, the Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;collective bargaining agreements.
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiviv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;.
(xvv) 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;
(xvivi) any fidelity or surety bond or completion bond;
(xviivii) any lease of personal property having a value individually agreement, contract or commitment under which it has limited or restricted its right to compete with any person in excess of $25,000any respect;
(xviiiviii) any agreement of indemnification or guaranty;
(xixix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xxx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000;
(xxixi) 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 Businessthe Company's business;
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements arrangements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;
(xxiiixiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxivxiv) any distribution, joint marketing or development agreement;
(xxvxv) any assignment, license or other agreement pursuant to which the Company has granted or may grant in the future, with respect to any partyform of intangible property, a source-code license or option or other right to use or acquire source-codeor,;
(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
(xxviixvi) any other agreement, contract or commitment that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 2.12, the Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)not breached, Part 2.11(q)violated or defaulted under, Part 2.11(r)or received notice that it has breached, Part 2.12(a) and Part 2.21(b) violated or defaulted under, any of the Company Disclosure Letter and a written summary setting forth the terms and or conditions of each oral agreement referred any agreement, contract or commitment required to in be set forth on Schedule 2.12, Schedule 2.11(a) or Schedule 2.11(b) (any such parts of the Company Disclosure Letter (collectivelyagreement, all such agreements are referred to as the contract or commitment, a "ContractsContract"). 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, Each Contract is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (B) neither the Company norSchedule 2.12, is not subject 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 default thereunder 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 has knowledge by any party obligated to paythe Company pursuant thereto.
Appears in 1 contract
Sources: Merger Agreement (Synbiotics Corp)
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except as set forth on Exhibit 2.9 of the Company Disclosure Letter lists Exhibit Volume, the following written or oral contracts, agreements, commitments and other arrangements to which the Company Seller is not presently a party to or by which the Company or any of its assets is boundbound by:
(i) any employment, consulting or sales agreement under which with any employee, consultant or salesperson of the consequences of a default or termination could have a Material Adverse Effect on the CompanySeller;
(ii) any agreement concerning a partnership or joint venture;
(iii) plan relating to employee benefits or compensation, including without limitation any agreement option plan or purchase plan with any Company Stockholder or any of such stockholder's affiliates (other than the Company) or with any affiliate respect to Equity Interests 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planSeller, any of 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually an annual rental rate in excess of $25,0002,000 individually or $15,000 in the aggregate;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xxv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,0002,000 individually or $10,000 in the aggregate;
(xxivi) 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 Businessthe Seller's business;
(xxiivii) any payables, mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit or evidencing any debt or any payable, including guaranties referred to in clause (xviii) hereofdebt or agreement which is secured by any assets of the Seller;
(xxiiiviii) any purchase order or contract for the purchase of raw materials or services involving in excess of $2,000 individually or $10,000 or morein the aggregate;
(xxivix) any construction contracts;
(x) any dealer, distribution, joint marketing or development agreementagreement or agreements relating to territorial arrangements, sales representation, operating or consulting agreements;
(xxvxi) any remarketer, reseller or other agreement for use or distribution of the Seller's products, technology or services;
(xii) any supplier or third party provider agreements;
(xiii) any joint venture, partnership or other management agreements;
(xiv) any advertising, marketing, telemarketing or promotional agreements; yellow pages ad
(xv) any tax sharing agreement with any other party;
(xvi) any non-compete or other agreements restricting the business in any way;
(xvii) any independent agent or independent contractor agreements;
(xviii) any agreements for the discount of the services or products offered by the Seller; Wireless Services - City of Vicksburg; Culkin Water; ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; Domains - ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(xix) any agreements pursuant to which the Company has granted or may grant in the future, Seller is obligated to indemnify any party, a source-code license or option or other right to use or acquire source-code,;
(xxvixx) any agreements with any current or former officer, director, employee, consultant or equity holder or any partnership, corporation, joint venture or other entity in which any such person has an interest;
(xxi) any irrevocable right of use or similar agreements;
(xxii) any agreement pursuant to which providing for the Company has developed and/or delivered purchase of telecommunications minutes, services or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Propertytraffic; or
(xxviixxiii) any other agreement, contract or commitment that involves $25,000 2,000 individually or $20,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) calendar days.
(b) The Company Seller is in compliance with and has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)not breached, Part 2.11(q)violated or defaulted under, Part 2.11(r)or received notice that it has breached, Part 2.12(a) and Part 2.21(b) violated or defaulted under, any of the Company Disclosure Letter and a written summary setting forth the terms and or conditions of each oral agreement referred any agreement, contract, lease, license or commitment to in such parts of the Company Disclosure Letter which it is a party or by which it is bound, including those included on Exhibit 2.7 (collectively, all such agreements are referred to as the "Contracts"), nor does the Seller have knowledge of any event that would constitute such a material breach, violation or default with the lapse of time, giving of notice or both. Except as set forth in 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, Each Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company and is not subject to any material default thereunder, nor, to the Company's or knowledge of the Principal Stockholders' KnowledgeSeller, is any other Party is in breach or default, and no event party obligated to the Seller pursuant thereto subject to any material default thereunder.
(c) The Seller has occurred, which with notice or lapse of time would constitute a breach or defaultobtained, or permit terminationwill obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger or for such Contracts to remain in effect without modification, limitation or acceleration, under alteration after the agreement; (C) no Party has repudiated any provision of Closing Date. Following the agreement; and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective TimeClosing Date, the Company Seller will be permitted to exercise all of the Company's its rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties amounts or payments consideration which the Company Seller would otherwise be required to paypay had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Asset Purchase Agreement (Xfone Inc)
Agreements, Contracts and Commitments. (a) Part Except as set forth on Schedule 2.12(a) of ), the Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;collective bargaining agreements,
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;,
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xiviv) any employment or consulting agreement, contract or commitment Contract with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment Contract under which any firm or other organization provides services to the Company;,
(xvv) 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 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),
(xvivi) any fidelity or surety bond or completion bond;,
(xviivii) any lease of personal property having a value individually in excess of $25,000;50,000,
(xviiiviii) any agreement of indemnification or guaranty;,
(xixix) 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;,
(xxx) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000;20,000,
(xxixi) 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 ordinary course of Business;the Company’s business,
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;hereof in each case in excess of $10,000,
(xxiiixiii) any purchase order or contract Contract for the purchase of raw materials or finished products involving $10,000 5,000 or more;more per order to be incurred by the Company following the date of this Agreement,
(xxivxiv) any construction Contract,
(xv) any distribution, joint marketing or development agreement;,
(xxvxvi) 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
(xxviixvii) any other agreement, contract or commitment Contract that involves $25,000 20,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)not breached, Part 2.11(q)violated or defaulted under, Part 2.11(r)or received notice that it has breached, Part 2.12(a) and Part 2.21(b) violated or defaulted under, any of the Company Disclosure Letter and a written summary setting forth the material terms and or conditions of each oral agreement referred any Contract required to in be set forth on Schedule 2.12(a)or Schedule 2.11(n)(any such parts of the Company Disclosure Letter (collectivelyContract, all such agreements are referred to as the "Contracts"a “Scheduled 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, Each Scheduled Contract is legal, valid, binding, enforceable, and in full force and effect (except for those Scheduled Contracts that have terminated or expired by their terms) and, except as otherwise disclosed in all respects; (B) neither the Company norSchedule 2.12(b), to the Company's or ’s knowledge, no party obligated to the Principal Stockholders' Knowledge, any other Party Company pursuant to a Scheduled Contract 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 paydefault thereunder.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept for this Agreement, the Related Agreements and the Contracts specifically identified on Section 3.12(a) of the Disclosure Schedule (with each of such Contracts specifically identified under subsection(s) of such Section 3.12 of the Disclosure Schedule that correspond to the Subsection or Subsections of this Section 3.12 of the Disclosure Schedule), and except with respect to a Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which Benefit Plan (including the Company Equity Plan and any awards issued under the Company Equity Plan and assumed pursuant to Section 2.1(b)) and the Lease Agreements, none of the Company nor any of its Subsidiaries is a party to, bound by or uses the benefits of any of the following Contracts:
(i) (i) any form of employment, contractor or consulting Contract with any current Employee, consultant or independent contractor and any individual agreements that materially deviate from the standard form; (ii) any Contract to grant any severance, change of control payments, retention bonus, or termination pay (in cash or otherwise) to any Employee; (iii) 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; (v) any form bonus or commission plan, or any bonus agreements or commission agreements with any Employee, and the schedule of bonus or commission commitments made to Employees; or (vi) any separation agreement, settlement agreement with any Employee or other Person, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity, entered into within the three year period preceding the Closing, (1) pursuant to which claims for harassment or discrimination were released; or (2) under which the Company or any of its assets is bound:
(i) Subsidiaries has any agreement under which the consequences of a default current actual or termination could have a Material Adverse Effect on the Companypotential Liability;
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xviiii) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in any amount in excess of $25,00025,000 individually or $75,000 in the aggregate, in each case in any fiscal year;
(xxiiv) 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 of Business;
(xxiiv) any mortgages, hypothecs, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereofcredit or other Indebtedness;
(xxiiivi) any purchase order or contract Contract for the purchase of raw materials involving tangible items of equipment or related services in any amount in excess of $10,000 25,000 individually or more$75,000 in the aggregate, in each case in any fiscal year and is not cancelable without penalty within ninety (90) days;
(xxivvii) any Contract with any Governmental Entity to which the Company or any Subsidiary is a party;
(viii) any confidentiality and non-disclosure agreements (whether the Company or any of its Subsidiaries is the beneficiary or the obligated party thereunder), other than those related to commercial transactions in the Ordinary Course of Business or in connection with a potential Acquisition Transaction entered into prior to the Agreement Date;
(ix) any Contract required to be disclosed on Section 3.9 of the Disclosure Schedule;
(A) any management service, legal partnership or joint venture Contract; and (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons;
(xi) each Contract containing any royalty, milestone, or other contingent payments based on any research, exploration, testing, development, collection, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or event;
(xii) each Contract that contemplates or involves the payment by or to the Company after the date of this Agreement in excess of $50,000 pursuant to its express terms relating to: (A) any distribution, reseller or sales representative 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 marketing, alliance, joint venture, cooperation, development or development agreement;
(xxv) 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 granted continuing obligations to develop any IP Rights that will not be owned, in whole or may grant in part, by the futureCompany; or (D) 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 party, a source-code license products or option or other right to use or acquire source-code,service of the Company;
(xxvixiii) 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;
(xiv) any Contract pursuant to which the Company or any of its Subsidiaries has developed and/or delivered 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 received funds from any Governmental Entity to develop and/or deliver material ownership interest in any Intellectual Property; orother Person;
(xxviixv) any Contract that provides for the assumption of any Tax, environmental or other Liability of any Person;
(xvi) any Contract between or among the Company or any Subsidiary, on the one hand, and any Affiliates (other than the Company or any such Subsidiary), on the other hand, that will not be terminated effective as of the Closing Date (other than employment, incentive, compensatory and similar agreements, and Charter Documents);
(xvii) any Contract or other arrangement to settle any Legal Proceeding or to settle any threatened or reasonably anticipated Legal Proceeding; and
(xviii) any other agreement, contract or commitment Contract that involves $25,000 individually or more $75,000 in the aggregate or more, in each case in any fiscal year, and is not cancelable without penalty within thirty ninety (3090) days.
(b) The Company has delivered to Parent a made available correct and complete copy copies of each written agreement (as amended Contract required to date) listed be disclosed pursuant to Sections 3.2, 3.9, 3.10, 3.11, 3.12 and 3.19(a). For the purposes of this Agreement, each of the foregoing Contracts referenced in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(athis subsection 3.12(b) and Part 2.21(bany Contracts entered into subsequent to the Agreement Date and prior to the Closing Date that would have been required to be disclosed 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 Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to its Subsidiaries has performed in such parts all material respects all of the Company Disclosure Letter (collectivelyobligations required to be performed by it and is entitled to all benefits under, all such agreements are referred and, to as the "Contracts"). Except as set forth in Part 2.12(b) Knowledge of the Company, is not alleged to be in default in respect of, any Material Contract. Each of the Material Contracts is valid, binding and, assuming the due authorization, execution and delivery by the other parties thereto, enforceable against the Company Disclosure Letteror its Subsidiaries (to the extent such entity is a party to such Material Contract), with respect and is in full force and effect, subject only to each such agreement: (A) the agreementeffect, if any, of applicable bankruptcy and other similar Laws affecting the rights of creditors generally and rules of Law governing specific performance, injunctive relief and other equitable remedies. There exists no default or event of default or event, occurrence, condition or act, with respect to the Company andor any of its Subsidiaries, or to the Knowledge of the Company's and , with respect to any other contracting party, that, with the Principal Stockholders' Knowledgegiving of notice, all the lapse of time or the happening of any other parties theretoevent or condition, is legalwould 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 remedy under any Material Contract, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company norright to a material rebate, to the Company's chargeback, refund, credit, penalty or the Principal Stockholders' Knowledgechange in delivery schedule under any Material Contract, 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 the right to accelerate the maturity or performance of any provision material obligation of the agreement; and Company or any of its Subsidiaries under any Material Contract, or (D) the Company does not have right to cancel, terminate or modify or in 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 Companymaterial respect any Material Contract. Subject to receipt of the consents set forth in Part 6.3(c) None of the Company Disclosure Letternor any of its Subsidiaries has received any notice or other communication regarding any actual or possible violation or breach of, following the Effective Timedefault under, or intention to cancel or modify any Material Contract. None of the Company will be permitted to exercise all nor any of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment its Subsidiaries has any Liability for renegotiation of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to payContracts with Governmental Entities.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(aSection 2.9(a) of the Company Disclosure Letter lists Schedule identifies, and the Company has provided Parent true, complete and correct copies of, each of the following written to the extent not available in complete and unredacted form on EDGAR (each, a "Company Material Contract" and, collectively, the "Compa▇▇ ▇▇terial Contracts"):
(i) any agreement, contract or oral contractscommitment currently in effect (or if not currently in effect, agreements, commitments and other arrangements pursuant to which the Company is a party or by which the Company or any of its assets is bound:
Subsidiaries has material and continuing obligations or rights with respect thereto) that (i) is required to be filed as an exhibit to, or otherwise incorporated by reference in, the Company SEC Reports pursuant to Regulation S-K, or (ii) which has been entered into by the Company or any agreement under which of its Subsidiaries since its quarter ended June 30, 2002 and will be required to be filed by the consequences Company with the SEC pursuant to Item 601(a)(1) of a default or termination could have a Material Adverse Effect on the CompanyRegulation S-K;
(ii) any agreement concerning a partnership agreement, contract or joint venturecommitment currently in effect (or if not currently in effect, pursuant to which the Company or any of its Subsidiaries has material and continuing obligations or rights with respect thereto) relating to the employment of, or the performance of services by, any employee of or consultant to, the Company or its Subsidiaries that is in excess of $100,000 for any single individual, other than offer letters for "at will" employment that do not contain any severance obligations, and any agreement, contract or commitment pursuant to which the Company or its Subsidiaries is or may become obligated to make any severance, termination or similar payment to any current or former employee, executive officer or director of or consultant to any of the Company or its Subsidiaries; and any agreement, contract or commitment pursuant to which the Company or its Subsidiaries is or may become obligated to make any bonus or similar payment or series of payments (other than payments constituting base salary) in excess of $25,000 to any current or former employee, executive officer or director of the Company or its Subsidiaries;
(iii) any agreement with any agreement, contract or commitment currently in effect (or if not currently in effect, pursuant to which the Company Stockholder or any of such stockholder's affiliates (other than its Subsidiaries has material and continuing obligations or rights with respect thereto) that provides the Company) Company or with its Subsidiaries to indemnify any affiliate current or former officer, director, employee, agent, consultant or independent contractor of the CompanyCompany or its Subsidiaries in an amount, in each instance in excess of $100,000;
(iv) any advertising servicesagreement, e-commerce contract or commitment currently in effect (or if not currently in effect, pursuant to which the Company or any of its Subsidiaries has material and continuing obligations or rights with respect thereto) imposing any restriction on the right or ability of the Company or its Subsidiaries (A) to compete with any other Person, (B) to acquire any product or other agreement involving the promotion of products and asset or any services of third parties by the Companyfrom any other Person, (C) to solicit, hire or retain any Person as an employee, consultant or independent contractor, (D) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person;
(v) any agreement agreement, contract or commitment (other than Company Stock Options) currently in effect (or if not currently in effect, pursuant to which the Company or any of its Subsidiaries has material and continuing obligations or rights with customers respect thereto) (A) relating to the acquisition, issuance, voting, registration, sale or suppliers for transfer of any securities of any of the sharing Company or its Subsidiaries, (B) providing any Person with any preemptive right, right of feesparticipation, right of maintenance or any similar right with respect to any securities of any of the rebating Company or its Subsidiaries, or (C) providing the Company or its Subsidiaries with any right of charges first refusal with respect to, or other similar arrangementsright to repurchase or redeem, any securities of the Company or its Subsidiaries;
(vi) any agreement obligating agreement, contract or commitment currently in effect (or if not currently in effect, pursuant to which the Company or any of its Subsidiaries has material and continuing obligations or rights with respect thereto) incorporating or relating to deliver maintenance services any guaranty, pledge, warranty or future product enhancements indemnity or containing a "most favored nation" pricing clausesimilar obligation by the Company or its Subsidiaries for the benefit of any other Person, excluding any such guaranty, warranty or indemnity or similar obligation by the Company or its Subsidiaries granted to any customer in the ordinary course of business consistent with past practices;
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or currently in effect relating to any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Companycurrency hedging;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xixviii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage "standstill" or similar provisions currently in any line of business or to compete with any personeffect;
(xxix) any agreement, contract or commitment relating currently in effect (or if not currently in effect, pursuant to capital expenditures which the Company or any of its Subsidiaries has material and continuing obligations or rights with respect thereto) creating or involving future payments in excess of $25,000any agency relationship, distribution arrangement or franchise relationship;
(xxix) any agreement, contract or commitment relating to the disposition currently in effect (or acquisition of assets or any interest if not currently in any business enterprise outside the Ordinary Course of Business;
(xxii) any mortgageseffect, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) 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 or any of its Subsidiaries has granted material and continuing obligations or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,;
rights with respect thereto) (xxviA) 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 Authority is a party or under which any Intellectual Property; or
Governmental Authority has any rights or obligations, or (xxviiB) directly benefiting any Governmental Authority (including any subcontract or other agreement, contract or commitment between the Company or its Subsidiaries and any contractor or subcontractor to any Governmental Authority);
(xi) any agreement, contract or commitment currently in effect (or if not currently in effect, pursuant to which the Company or any of its Subsidiaries has material and continuing obligations or rights with respect thereto) requiring that the Company or its Subsidiaries give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal (as defined in Section 4.2) or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Proposal or similar transaction;
(xii) any agreement, contract or commitment currently in effect (or if not currently in effect, pursuant to which the Company or any of its Subsidiaries has material and continuing obligations or rights with respect thereto) that has a remaining term of more than one year and that may not be terminated (without penalty) within 90 days after the delivery of a termination notice and that would require payment by the Company or its Subsidiaries of, or involves the performance of services by the Company or its Subsidiaries having a value, in excess of $25,000 100,000 over the remaining term;
(xiii) any agreement, contract or more commitment that contemplates or is involves the payment or delivery of cash or other consideration by the Company or its Subsidiaries in an amount or having a value in excess of $250,000 in the aggregate, or contemplates or involves the performance of services by the Company or its Subsidiaries having a value in excess of $250,000 in the aggregate; and
(xiv) any agreement, contract or commitment currently in effect (or if not cancelable without penalty within thirty currently in effect, pursuant to which the Company or any of its Subsidiaries has material and continuing obligations or rights with respect thereto) not otherwise identified in clauses "(30) daysi)" through "(xiii)", a breach of which would reasonably be expected to have a Company Material Adverse Effect.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (Except as amended to date) listed disclosed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) Section 2.12 of the Company Disclosure Letter and a written summary setting forth Schedule, neither the Company nor any of its Subsidiaries has breached, or received in writing any claim or threat that it has breached, any of the terms and or conditions of each oral agreement referred to any Company Material Contract in such parts of a manner as would permit any other party thereto to cancel or terminate the same or to collect material damages from the Company Disclosure Letter or any of its Subsidiaries.
(collectively, all such agreements are referred to as the "Contracts"). Except as set forth c) Each Company Material Contract that has not expired or otherwise been terminated in Part 2.12(b) of the Company Disclosure Letter, accordance 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, its terms is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company norand, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all knowledge of the Company's rights under , no other party to such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment of contract is in default in any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to paymaterial respect.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as set forth on Schedule 3.11, the Company Disclosure Letter lists the following Group Companies are not a party to or bound by, whether written or oral contractsoral, agreements, commitments and other arrangements to which the Company any Contract that is a party or by which the Company or any of its assets is bounda:
(i) Contract involving a potential commitment, payment, loan or investment by any agreement under which the consequences Group Company (excluding employment Contracts) in excess of a default or termination could have a Material Adverse Effect on the Companyan aggregate of $25,000 annually;
(ii) Contract which is not cancelable by any agreement concerning a partnership or joint ventureGroup Company without penalty on not less than ninety (90) days’ notice;
(iii) Contract under which Indebtedness arises or could arise (including guaranty arrangements and debt financing commitments) or under which any agreement with any Group Company Stockholder has mortgaged, pledged, suffered to exist or any of such stockholder's affiliates otherwise placed, or committed to mortgage, pledge, suffer to exist or otherwise place, a Lien (other than the Companya Permitted Lien) on any of its assets 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plansequity interests, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization Group Company provides services to the Company;
(xv) any agreement or planguaranty of an obligation of a third party, 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in each case in excess of $25,000;
(xviiiiv) Contract which contains any agreement provisions requiring any Group Company to indemnify any other party (other than (A) obligations to indemnify a party for damage to personal property or injury or death to persons arising from the negligence of indemnification or guarantyany Group Company and (B) obligations to indemnify for third-party claims of infringement of Intellectual Property under Contracts entered in the ordinary course of business), except as incurred in the ordinary course of business;
(xixv) Contract involving fixed price or fixed volume arrangements;
(vi) Contract under which any agreementGroup Company is lessee of, contract or commitment holds or operates any personal property owned by any other party calling for payments in excess of $25,000 annually;
(vii) Contract relating to any Group Company’s ownership of or investment in any business or enterprise (including joint ventures and minority equity investments);
(viii) Contract containing any covenant limiting in any respect the freedom right of the any Group Company to freely engage in any line of business, to compete with any Person in any line of business or to compete with any personPerson or the manner or locations in which any of them may engage;
(ix) Contract prohibiting or limiting the right of any Group Company to make, sell or distribute any products or services;
(x) Contract pursuant to which any Group Company has agreed to provide “most favored nation” pricing or any arrangement whereby any Group Company or the Seller has agreed with any Person that such Person will receive the most favorable terms and conditions that are provided by any Group Company to any other Person;
(xi) Contract or group of Contracts requiring the purchase of all or substantially all of any the Group Company’s requirements of a particular product from a vendor;
(xii) Contract pursuant to which any Group Company subcontracts work to third parties calling for payments by any Group Company in excess of $25,000 annually;
(xiii) Contract with any Governmental Authority;
(xiv) Contract with a Material Prescriber or a Material Supplier;
(xv) acquisition agreement, whether by merger, equity interest, asset sale or otherwise (i) under which any Group Company has any outstanding obligation to pay any purchase price or under which any Group Company has any contingent obligation to pay any contingent purchase price or (ii) under which any Group Company at any time during the last five (5) years had an obligation to pay more than $25,000 in purchase price;
(xvi) Contract for the employment of any officer, individual employee, or other Person on a full-time or part-time basis, services, consulting, change in control, retention, or other similar Contract, in each case providing annual cash or other compensation in excess of $100,000, with the exception of offer letters for “at-will” employment that do not provide for severance, change of control or retention benefits;
(xvii) Contract providing for payment upon the severance or termination of any full-time or part-time Service Provider;
(xviii) Contract with any Service Provider containing any noncompetition, nonsolicitation, invention assignment, and/or confidentiality provision, excluding any Contracts disclosed on Schedule 3.11(a)(xvi) or Schedule 3.11(a)(xvii);
(xix) Contract providing for any bonus payment by any member of the Group Company to any Service Provider excluding any Contracts disclosed on Schedule 3.11(a)(xvi) or Schedule 3.11(a)(xvii);
(xx) Settlement or separation Contract with any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000Service Provider under which any Group Company has any outstanding financial obligations;
(xxi) any agreementContract providing for material liquidated damages or penalties on event of transfer, contract assignment or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the Ordinary Course of Businessdefault;
(xxiiA) any mortgages, indentures, loans or credit agreements, security agreements or Licenses In (other agreements or instruments relating to than commercial off the borrowing shelf software that is made available for a total cost of money or extension of credit, including guaranties referred to in clause less than $25,000) and (xviiiB) hereofLicenses Out;
(xxiii) any purchase order or contract for Contract not executed in the purchase ordinary course of raw materials involving $10,000 or morebusiness that is not otherwise set forth on Schedule 3.11;
(xxiv) any distributionContract with a pharmaceutical, joint marketing biological, or development agreementmedical device manufacturer, distributor, or pharmaceutical wholesaler; pharmacy benefit manager, group purchasing organization; or other third party whereby the Company receives or is entitled to receive (A) discounts, rebates or other price concessions on any pharmaceutical, biological, medical device product, (B) any service fees or (C) any other compensation;
(xxv) Contract with any agreement pursuant to which the Company has granted Governmental Health Care Program or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,payor;
(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 PropertyContract with pharmacy providers, Health Care Professionals, physician practice groups, hospitals, clinical laboratories, DME suppliers, home health service providers, physical therapy, occupational therapy, skilled nursing facilities, and other health care providers; or
(xxvii) any other agreement, contract Contract not otherwise referred to in this Section 3.11 that if terminated would have or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) daysbe reasonably likely to result in a Material Adverse Effect.
(b) The Contracts required to be disclosed on Schedule 3.11, Schedule 3.12 or Schedule 3.23 are referred to herein as the “Company Contracts.” The Company has delivered to Parent a Buyer true, correct and complete copy copies of each written agreement Company Contract, together with all amendments, waivers and other changes thereto (as amended to date) listed in Part 2.10(a)all of which are disclosed on Schedule 3.11, Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"Schedule 3.12 or Schedule 3.23). Except as set forth in Part 2.12(b) of the Company Disclosure Letterdisclosed on Schedule 3.11, with respect to each such agreementSchedule 3.12 or Schedule 3.23: (Ai) the agreement, with respect to the no Company andContract has been canceled or, to the Company's and the Principal Stockholders' ’s Knowledge, all in default or breached by the other parties party thereto, (ii) the Group Companies have performed, in all material respects, all of the obligations required to be performed by them in connection with the Company Contracts and are not in default under, or in breach of, any Company Contract, and no event or condition has occurred or arisen which with the passage of time or the giving of notice or both would result in a default or breach thereunder, and (iii) each Company Contract is legal, valid, binding, enforceable, enforceable and in full force and effect in all respects; (B) neither the Company nor, to the Company's or the Principal Stockholders' Knowledge, any other Party is in breach or defaulteffect, 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 will continue as such following the agreement; (C) no Party has repudiated any provision consummation of the agreement; transactions contemplated hereby, subject to bankruptcy, insolvency, reorganization, moratorium and (D) the Company does not have any reason similar Laws of general applicability relating to believe that the service called for thereunder cannot be supplied in accordance with its terms or affecting creditors’ rights and without resulting in a loss to the Company. Subject to receipt general principles of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payequity.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except as set forth in Section 2.14 of the Company Disclosure Letter lists the following written or oral contractsSchedule, agreements, commitments and other arrangements to which the Company does not have continuing obligations under, is not a party or by which the Company or any of its assets to, nor is boundit bound by:
(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;
(xiiii) 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;
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiviv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment 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;
(xvv) 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;
(xvivi) any fidelity or surety bond or completion bond;
(xviivii) any lease of personal property having a value annual lease payments individually in excess of $25,000US$10,000;
(xviiiviii) any agreement of indemnification or guarantyguaranty other than in the ordinary course of business;
(xixix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xxx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000US$10,000 in the aggregate;
(xxixi) 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 ordinary course of Businessthe Company's business;
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereofany guarantees;
(xxiiixiii) any purchase order or contract for the purchase of raw materials involving $US$10,000 or more;
(xxivxiv) any construction contracts;
(xv) any distribution, joint marketing or development agreement;
(xxvxvi) any agreement pursuant 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 which account for, more than one percent (1%) of the Company has granted Company's revenue 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 Propertytrade payables; or
(xxviixvii) 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)not breached, Part 2.11(q)violated or defaulted under, Part 2.11(r)or received notice that it has breached, Part 2.12(a) and Part 2.21(b) violated or defaulted under, any of the Company Disclosure Letter and a written summary setting forth the material terms and or conditions of each oral agreement referred to (i) any agreement, contract or commitment set forth in such parts Section 2.14 of the Company Disclosure Letter Schedule, or (collectivelyii) any other agreement, all contract or commitment to which it is a party or by which it is bound (any such agreements are referred to as the agreement, contract or commitment, a "ContractsCONTRACT"). 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, Each Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, and is not subject 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 default thereunder 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 or any of the Principal Securityholders is aware by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the transactions contemplated hereby and by each of the Related Agreements, or as are required or advisable in order to payremain in effect without modification after the consummation of the transactions contemplated hereby and thereby.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of the Company Disclosure Letter lists the following written or oral contractsExcept as set forth on Schedule 3.12(a), agreementseGroups does not have, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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;
(xiiii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiviv) any material employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any material consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the CompanyeGroups;
(xvv) 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;
(xvivi) any fidelity or surety bond or completion bond;
(xviivii) any lease of personal property having a value individually in excess of $25,00050,000;
(xviiiviii) any agreement of indemnification or guaranty;
(xixix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company eGroups to engage in any line of business or to compete with any person;
(xxx) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00050,000;
(xxixi) 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 BusinesseGroups' business;
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;
(xxiiixiii) any purchase order or contract for the purchase of raw materials involving $10,000 50,000 or more;
(xxivxiv) any construction contracts;
(xv) any distribution, joint marketing or development agreement;
(xxvxvi) any agreement pursuant to which the Company eGroups has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,;
(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
(xxviixvii) 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 has delivered to Parent Except for such alleged breaches, violations and defaults, and events that would constitute a correct and complete copy breach, violation or default with the lapse of each written agreement (time, giving of notice, or both, as amended to date) listed are all noted in Part 2.10(aSchedule 3.12(b), Part 2.11(qeGroups 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 3.12(a), Part 2.11(r)Schedule 3.11(c) or Schedule 3.11(h) (any such agreement, Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and contract or commitment, a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "ContractseGroups 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, Each eGroups Contract is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (B) neither the Company norSchedule 3.12(b), is not subject to the Company's or the Principal Stockholders' Knowledge, any other Party is in breach or default, and no event default thereunder of which eGroups 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 Knowledge by any provision of the agreement; and (D) the Company does not have any reason party obligated to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payeGroups pursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company is a party or by which the Company or any of its assets is bound:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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 Except as otherwise contemplated by this Agreement or the value of any of the benefits of which will be calculated as set forth on the basis of any of the transactions contemplated by this Agreement;Disclosure Schedule 3.6, Seller is not a party to, or bound by:
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 3.6.1 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;
(xx) any agreementcontract, 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 relating directly or indirectly to the Ordinary Course of Business, any Acquired Asset or any Key Employee;
3.6.2 other than indemnification or guaranty provisions set forth in the Assigned Contracts, any agreement of indemnification or guaranty relating directly or indirectly to the Business, any Acquired Asset or any Key Employee;
3.6.3 any agreement for which completion of performance by Seller (xxiiwithout giving effect to the transactions contemplated hereby) under the terms of such agreement would be reasonably likely to result in a Material Adverse Effect on the Business or any Acquired Asset;
3.6.4 any agreement (or group of related agreements) that imposes any restrictions on the marketing, license and distribution of the Products);
3.6.5 any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Seller or extension of credit, including guaranties referred credit to in clause (xviii) hereofSeller under which any Person has imposed any lien on any of the Acquired Assets;
(xxiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxiv) 3.6.6 any distribution, joint marketing marketing, development, partnership or development agreementjoint venture agreement relating to the Business or the Acquired Assets;
(xxv) 3.6.7 any agreement pursuant to which the Company Seller has granted granted, or may grant in the future, to any party, Person a source-source code license or option or other right to use or acquire source-code,source code affecting the Business or any Acquired Asset;
(xxvi) 3.6.8 any employment agreement, non-competition, non-solicitation or other agreement, with the exception of stock option agreements, warrant grants or agreements and similar incentive compensation arrangements which utilize equitable interests in the Company, with any Key Employee, Technical Transferred Employee or Transferred Employee;
3.6.9 any agreement, contract or commitment containing any covenant limiting in any respect the right of Seller to engage in any line of business or to compete with any Person; or
3.6.10 any agreement pursuant to which Seller 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 Company has developed and/or delivered infringement or has received funds from misappropriation by Seller or any Governmental Entity to develop and/or deliver any Person of the 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as set forth in Part 2.12(bon Disclosure Schedule 3.6, (i) Seller has not breached, violated or defaulted under any of the Company Disclosure Letterterms of or conditions of any Assigned Contract, with respect to (ii) each such agreement: (A) of the agreement, with respect to the Company and, to the Company's and the Principal Stockholders' Knowledge, all other parties thereto, Assigned Contracts is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company norand, to the Company's or the Principal Stockholders' KnowledgeKnowledge of Seller, is not subject to any other Party is in breach or defaultdefault thereunder by any Person obligated to Seller pursuant thereto, 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; (Ciii) no Party has repudiated any provision of the agreement; and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt Knowledge of the consents set forth in Part 6.3(c) of the Company Disclosure LetterSeller, following the Effective TimeClosing, the Company will Buyer shall be permitted to exercise all of the CompanySeller's rights under such agreements the Assigned Contracts to the same extent the Company Seller would have been able to had the Merger transactions contemplated by this Agreement not occurred and without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company Seller would otherwise be required to pay.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) Item 3.10 of the Company Aurora Disclosure Letter lists the following written Schedule sets forth a complete and correct list of each existing contract, agreement or oral contractscommitment of Aurora, agreements, commitments and other arrangements to which the Company is a party or by which the Company or any of its assets is boundthan Material Leases:
(i) upon which any agreement under which the consequences substantial part of a default its business is dependent or termination could which, if breached, would be reasonably likely to have a Material Adverse Effect on the CompanyAurora;
(ii) which provides for aggregate future payments of more than $5,000, except for purchase orders or sale orders arising in the ordinary and usual course of business, in which case they are listed only if any agreement concerning a partnership or joint ventureparty thereto is obligated to make payments pursuant thereto aggregating more than $25,000;
(iii) any agreement with any Company Stockholder which extends for more than 180 days from the date hereof and is not cancellable by either party on 30 days' notice or any of such stockholder's affiliates (other than the Company) or with any affiliate of the Companyless;
(iv) which provides for the sale, after the date hereof and other than in the ordinary course of business, of any advertising services, e-commerce or other agreement involving the promotion of products and services of third parties by the Companyits assets;
(v) which relates to the employment, compensation, retirement or termination of the services of any agreement officer or employee or former officer or employee, including bonus, incentive, pension, profit-sharing, hospitalization, insurance, deferred compensation, retirement, stock option or stock purchase plans or similar plans providing employee benefits for or with customers respect to any officer or suppliers for the sharing of fees, the rebating of charges or other similar arrangementsemployee;
(vi) which contains covenants pursuant to which any agreement obligating person or entity has agreed not to compete with the Company business of any other person or entity or not to deliver maintenance services disclose to others information concerning such other person or future product enhancements or containing a "most favored nation" pricing clauseentity;
(vii) any agreement obligating which relates to the Company sale or other disposition of goods or services and which (A) involve terms or quantities exceeding normal commitments or in the ordinary course of business or (B) contain most favored pricing or other special pricing terms or other provisions which would prohibit or limit the ability of Buyer to provide source code to any third party for any Company Intellectual Propertyeffect price increases;
(viii) any agreement granting an exclusive license pursuant to which title to any Company Intellectual Property or granting any exclusive distribution rights;assets of Aurora may be encumbered; or
(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 which relates 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonuspartnership, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm joint venture or other organization provides services to the Company;
(xv) arrangement involving a sharing of profits from any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any enterprise. Each of 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) 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 Business;
(xxii) 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 foregoing is referred to in clause (xviii) hereof;
(xxiii) 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, this Agreement as 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"Material Contract.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). " Except as set forth in Part 2.12(b) Item 3.10 of the Company Aurora Disclosure LetterSchedule, 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, Material Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither and there has not occurred, with respect to any such Material Contract, any default or event of default, which, with or without due notice or with the Company norlapse of time, or both, would constitute a default or event of default on the part of Aurora, or, to the Companybest of Aurora's or the Principal Stockholders' Knowledgeknowledge, any other Party is in breach party thereto, except where such default or default, and no event has occurred, which with notice or lapse of time default 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the CompanyMaterial Adverse Effect on Aurora. Subject to receipt Complete copies of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would each Material Contract have been able delivered 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 payBuyer.
Appears in 1 contract
Sources: Merger Agreement (Comdial Corp)
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept as set forth on Section 2.17(a) of the Company Disclosure Letter lists the following written or oral contractsSchedule, agreements, commitments and other arrangements to which the Company Seller is not a party to, or by which the Company or any of its assets is boundbound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson (other than “at will” employment agreements entered into in the ordinary course of business), any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xvii) any agreement or plan, including, without limitation, any stock equity option plan, stock equity appreciation rights plan or stock equity purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually in excess of $25,000property;
(xviiiv) any lease of real property;
(vi) except as provided in Section 2.17(a)(vii) below, any agreement of indemnification or guaranty;
(xix) 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;
(xxvii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000 individually or $50,000 in the aggregate;
(xxiviii) 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 Seller’s Business;
(xxiiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiix) any purchase order or contract for the purchase of raw materials involving in excess of $10,000 or more5,000 individually;
(xxivxi) any construction contracts;
(xii) any partnership, dealer, distribution, joint marketing marketing, joint venture, strategic alliance, affiliate, development agreement or development similar agreement;
(xxvxiii) any agreement pursuant agreement, contract or commitment to alter Seller’s interest in any corporation, association, joint venture, partnership or business entity in which the Company has granted Seller directly or may grant in the future, to indirectly holds any party, a source-code license or option or other right to use or acquire source-code,interest;
(xxvixiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement pursuant to which for use or distribution of the Company has developed and/or delivered products, technology or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Propertyservices of Seller; or
(xxviixv) other than customer purchase orders, any other agreement, contract or commitment that involves $25,000 5,000 individually or $10,000 in the aggregate or more or with respect to any Person and is not cancelable without penalty within thirty 30 days. Each of the Contracts listed on or required to be listed on Section 2.17(a) of the Disclosure Schedule (30other than the Excluded Contracts) daysshall be referred to as a “Material Contract” and collectively, as the “Material Contracts.”
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (Except as amended to date) listed set forth in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(bSection 2.17(b) of the Company Disclosure Letter Schedule, there are no end-user customers that account for greater than five percent (5%) of Seller’s net sales. Section 2.17(b) of the Disclosure Schedule contains a list of Seller’s 10 largest customers for the l2 months ending June 30, 2010, and a written summary setting sets forth opposite the terms and conditions name of each oral agreement referred such customer the percentage of net sales attributable to such customer. During the last 12 months, Seller has not received any written notices or threats of termination from any of such customer that any such customer intends or otherwise anticipates a termination or material reduction in such parts the level of the Company Disclosure Letter (collectively, all such agreements are referred business with Seller. True and complete copies of each Material Contract have been delivered to as the "Contracts")Buyer or made available to Buyer in Seller’s Virtual Data Room. Except as set forth in Part 2.12(bSection 2.17(b) of the Company Disclosure LetterSchedule, each Material Contract to which Seller is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of Seller enforceable against each of the parties thereto in accordance with 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, enforceableits terms, and is in full force and effect in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms with respect to Seller; Seller is in compliance with and without resulting in 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 such Material Contract; and no party obligated to Seller pursuant to any such Material Contract has breached, violated or defaulted under such Material Contract, or taken any action or failed to act, such that, with the lapse of time, giving of notice or both, such action or failure to act would constitute such a loss to the Company. breach, violation or default under such Material Contract by any such other party.
(c) Subject to receipt execution and delivery of the consents set forth in Part 6.3(c) of the Company Disclosure Letterall required assignment agreements and consents, following the Effective TimeClosing Date, the Company Buyer will be permitted to exercise all of the Company's its rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and Material Contract without the payment of any additional amounts or consideration other than ongoing obligations, fees, royalties or payments which the Company Seller would otherwise be required to paysatisfy, perform or pay pursuant to the terms of such Contracts had the transactions contemplated by this Agreement not occurred. Except with respect to this Agreement, Seller is not in violation of any term of or in default under (A) the Charter Documents or (B) any Material Contract.
(d) All outstanding Indebtedness of Seller may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) ATS and ATLANTIC is not a party to, as of the Company Disclosure Letter lists the following written or oral contractsdate hereof, agreements, commitments and other arrangements to which the Company is a party or by which the Company or any of its assets is bound:
(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 collective bargaining agreements 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
, (xiiiii) any bonusEmployee Benefit Plans, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiviii) any employment or consulting agreement, contract or commitment with an employee employee, or individual consultant agreements to pay severance, (iv) other than the continuing employment of J▇▇▇▇ ▇▇▇▇▇▇▇▇ and M▇▇▇▇▇ ▇▇▇▇▇▇▇▇, any agreements between or salesperson among ATS and ATLANTIC or one of its Affiliates or with any consulting or sales Related Person of ATS and ATLANTIC, (v) any agreement, contract or commitment under which any firm indenture or other organization provides services to the Company;
(xv) instrument for borrowed money and any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any other instrument which contains restrictions with respect to payment of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence distributions in respect 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;
outstanding Securities that has not been disclosed to Cerberus in writing, (xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xixvi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company ATS and ATLANTIC to engage or compete in any line of business or to compete with any person;
Person or in any geographic area during any period of time, (xxvii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000;
5,000, that has not been disclosed to Cerberus in writing; (xxiviii) any agreement, contract or commitment relating to the acquisition, disposition or acquisition voting of assets or any interest in capital stock of any business enterprise outside the Ordinary Course of Business;
enterprise, including ATS and ATLANTIC, (xxiiix) any mortgagescontract that requires ATS and ATLANTIC to purchase its total requirements of any product or service from a third party, indenturesthat has not been disclosed to Cerberus in writing; (x) any contract that provides for the indemnification by ATS and ATLANTIC of any Person for, loans or credit agreementsthe assumption of, security agreements any Tax, environmental or other agreements or instruments liability of any Person, that has not been disclosed to Cerberus in writing; (xi) any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contract to which ATS and ATLANTIC is a party, that has not been disclosed to Cerberus in writing; (xii) except for contracts relating to the borrowing trade receivables, any contract relating to indebtedness (including guarantees) of money or extension of creditATS and ATLANTIC, including guaranties referred that has not been disclosed to Cerberus in clause writing; (xviii) hereof;
(xxiiixiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
with any Governmental Authority to which ATS AND ATLANTIC is a party, that has not been disclosed to Cerberus in writing; (xxivxiv) any distributioncontract to which ATS AND ATLANTIC is a party that provides for any joint venture, joint marketing partnership or development similar arrangement by ATS AND ATLANTIC, (xv) any tax partnership agreement;
, (xxvxvi) any agreement pursuant to which that provides for an irrevocable power of attorney that will be in effect after the Company has granted Closing Date or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,;
(xxvixvii) any agreement pursuant that constitutes a lease of real property, that has not been disclosed to Cerberus in writing (it being acknowledged by the Parties that the Shareholder owns the real property in which the Company ATS AND ATLANTIC currently operate, and is subject to a Lease Agreement). ATS AND ATLANTIC has developed and/or delivered or has received funds from any Governmental Entity made available to develop and/or deliver any Intellectual Property; or
(xxvii) any other agreementCerberus accurate and complete copies of all written Material Contracts, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) daysincluding all amendments thereto.
(b) The Company ATS AND ATLANTIC has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) not materially breached any of the Company Disclosure Letter and a written summary setting forth the terms and or conditions of each oral agreement referred to in such parts of the Company Disclosure Letter any lease, contract, agreement, commitment, instrument or understanding (collectively, all such agreements are referred to as the "Contracts"whether written or oral). 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 andThere is not, to the Company's and the Principal Stockholders' KnowledgeKnowledge of ATS AND ATLANTIC, all other parties thereto, is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, to the Company's or the Principal Stockholders' Knowledgeunder any Material Contract, any other Party is in breach default or defaultevent which, and no event has occurred, which with notice or lapse of time or both, would constitute a breach or defaultmaterial default on the part of any of the parties thereto, or permit any notice of termination, cancellation or material modification.
(c) Except to the extent the enforceability thereof may be limited by Creditor Rights, or acceleration, under the agreement; (C) no Party has repudiated any provision each of the agreement; Material Contracts (i) constitutes the valid and binding obligation of ATS AND ATLANTIC and constitutes the valid and binding obligation of the other parties thereto, (ii) is in full force and effect and (Diii) immediately after the Company does not have any reason Closing, will continue to believe that the service called for thereunder cannot be supplied in accordance with its terms constitute a valid and without resulting in a loss to the Company. Subject to receipt binding obligation of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payATS AND ATLANTIC.
Appears in 1 contract
Sources: Stock Purchase Agreement (Cerberus Cyber Sentinel Corp)
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as set forth in the Company Disclosure Letter lists the following written or oral contractsSchedules, agreements, commitments and other arrangements to which neither the Company is a party or by which the Company or nor any of its assets subsidiaries has, nor is boundit a party to nor is it bound by:
(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);
(xia) any collective bargaining agreements;,
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiib) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xivc) any employment or consulting agreement, contract or commitment with an employee any officer or individual consultant or salesperson or any consulting or sales agreementdirector level employee, contract or commitment under which any firm or other organization provides services not terminable by the Company on thirty (30) 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,
(xvd) 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;,
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviiie) any agreement of indemnification or guaranty;guaranty not entered into in the ordinary course of business other than such agreements or guarantees between the Company and any of its subsidiaries, officers or directors,
(xixf) 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;,
(xxg) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000;200,000,
(xxih) any agreement, contract or commitment relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Business;enterprise,
(xxiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;,
(xxiiij) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxiv) any distribution, joint marketing or development agreement;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 the Company's software products),
(xxvk) any distribution agreement (identifying any that contain exclusivity provisions),
(l) any lease of real property involving the payment by the Company of $250,000 per year or more in any individual case,
(m) any agreement pursuant to which or commitment with any affiliate of the Company has granted or may grant in the futureCompany, 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
(xxviin) any other agreement, contract or commitment that (including personal property leases) which involves payment by the Company of $25,000 250,000 or more or and is not cancelable without penalty within thirty (30) days.
days or (b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of other than agreements for the provision by the Company Disclosure Letter and a written summary setting forth of services entered into in the terms and conditions ordinary course of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as set forth in Part 2.12(bits business) of the Company Disclosure Letter, with respect to each such agreement: (A) the agreement, with respect that involves payment to the Company and, to the Company's and the Principal Stockholders' Knowledge, all other parties thereto, is legal, valid, binding, enforceable, and of $250,000 or more in full force and effect in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payindividual case.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as contemplated by this Agreement or as set forth on Schedule 3.11, neither Almo nor the Company Disclosure Letter lists the following written Sellers currently has or oral contracts, agreements, commitments and other arrangements to which the Company is a party to, or bound by which the Company with respect to any Acquired Asset or any of its assets is bound:Key Employee (as defined in Section 3.4(i) hereof):
(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);
(xia) any collective bargaining agreements;
(xiib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiic) any stock option, stock purchase, stock appreciation, bonus, deferred compensation, pension, severance, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xixd) 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;
(xx) any agreementcontract, 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 except in the Ordinary Course ordinary course of Businessbusiness;
(xxiie) any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement;
(f) any agreement (or group of related agreements) for the lease of personal property to or from any person or entity having a value individually in excess of $10,000;
(g) any agreement of indemnification or guaranty;
(h) any agreement entered otherwise than in the ordinary course of business;
(i) to Almo and the Sellers' knowledge, any agreement that is likely to result in a loss in excess of $25,000 on completion of performance;
(j) any agreement (or group of related agreements) containing any covenant limiting the freedom of Almo or the Sellers to engage in any line of business or to compete with any person or entity that could reasonably be expected to impair or encumber the Acquired Assets (including, without limitation, any restrictions on the marketing, license, and distribution of the Seller Registered Intellectual Property);
(k) any agreement (or group of related agreements) relating to capital expenditures and involving future payments in excess of $15,000;
(l) any agreement (or group of related agreements) under which payment in excess of $1,000 has already been received by Almo or the Sellers (whether in whole or in part) but which requires the performance of services after the Closing Date, except for credit balances included in Schedule 1.2(b);
(m) any fidelity or surety bond or completion bond;
(n) any agreement pursuant to which Almo or the Sellers have advanced or loaned any amount to any director, officer, employee, or consultant other than business travel advances in the ordinary course of business;
(o) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Almo or the Sellers or extension of creditcredit to Almo or the Sellers exclusive of routine trade payables, including guaranties referred to involving obligations in clause (xviii) hereofexcess of $5,000 or under which Almo or the Sellers have imposed any lien on any of the Acquired Assets;
(xxiiip) any purchase order or contract for the purchase of raw materials (excluding capital expenditures) involving $10,000 15,000 or more;
(xxivq) any agreement concerning confidentiality, except in the ordinary course;
(r) any construction contracts;
(s) any distribution, joint marketing marketing, development, or development partnership or joint venture agreement;
(xxvt) any agreement pursuant to which Almo or the Company Sellers has granted granted, or may grant in the future, to any party, 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
(xxviiu) any other agreement, contract contract, lease, or commitment license (or series of related agreements, contracts, leases, and licenses) that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment of any additional amounts $10,000 or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to paymore.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except for the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments Customer Agreements set forth on SCHEDULE 3.10 and other arrangements agreements set forth on SCHEDULE 3.15 (true and correct copies of which have been made available to which the Buyer), the Company is not a party or by which the Company or any of its assets to and it is boundnot bound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xvii) 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 AgreementTransactions;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually with fixed annual rental payments in excess of $25,00010,000;
(xviii) any agreement of indemnification or guaranty;
(xixv) 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;
(xxvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000 either individually or in the aggregate;
(xxivii) 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 Businessthe Company's business;
(xxiiviii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or money, the extension of credit, including guaranties referred to in clause (xviii) hereofcredit or placing of Liens on any assets of the Company;
(xxiiiix) any guaranty of any obligation for borrowed money or otherwise;
(x) any purchase order or contract for the purchase of raw materials involving in excess of $10,000 either individually or morein the aggregate;
(xxivxi) any dealer, distribution, joint marketing or development agreement;
(xxvxii) any agreement pursuant to which the Company has granted or may grant in the futuresales representative, to any partyoriginal equipment manufacturer, a source-code license or option value added, remarketing or other right to use agreement for distribution of the Company's products or acquire source-code,services;
(xxvixiii) any collective bargaining agreement pursuant to which the Company has developed and/or delivered or has received funds from contract with any Governmental Entity to develop and/or deliver labor union;
(xiv) any Intellectual Propertymedical insurance or similar plan; or
(xxviixv) any other agreement, contract contract, commitment or commitment that involves grant pursuant to which the obligations of any party thereto is in excess of $25,000 or more or is not cancelable without penalty within thirty (30) days10,000.
(b) The Company has delivered to Parent a correct and complete copy To the best knowledge of each written 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 existing agreement (as amended to date) listed in Part 2.10(aincluding Customer Agreements), Part 2.11(q)contract, Part 2.11(r)grant, Part 2.12(a) and Part 2.21(b) of covenant, instrument, lease, license or commitment to which the Company Disclosure Letter and is a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter party or by which it is bound (collectively, all such agreements are referred to as the a "ContractsContract"), 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. Except as set forth in Part 2.12(b) To the best knowledge of the Company Disclosure Letter, with respect to each such agreement: (A) the agreement, with respect to the Company and, to the Company's Shareholder and the Principal Stockholders' KnowledgeSeller, all other parties thereto, each Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither and is not subject to any default thereunder by any party obligated to the Company norpursuant thereto. The Company has obtained, or will obtain prior to the Company's 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 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 Closing. Following the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective TimeClosing Date, the Company will be permitted to exercise all of the Company's its rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and 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 paypay had the Transactions not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Accupoll Holding Corp)
Agreements, Contracts and Commitments. (a) Part 2.12(a) Section 4.20 of the Company Disclosure Letter Schedule lists all of the following written or oral contracts, agreements, commitments and other arrangements agreements to which the Company is a party or by which the Company or any of its assets Subsidiary is bounda party (each, a “Contract”) which involve:
(ia) financial obligations by or to the Company or any Subsidiary for a total amount in excess of Fifty Thousand Dollars ($50,000) per year (per Contract);
(b) any agreement that has been entered into for the primary purpose of establishing obligations on the part of the Company or any Subsidiary to indemnify any officer, director, employee or third party (other than indemnification obligations set forth in customer contracts entered into in the ordinary course of business), or any power of attorney or guaranty (granted to a third party);
(c) any lease of personal property having a value individually in excess of Twenty-Five Thousand Dollars ($25,000);
(d) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in or under which a security interest has been imposed on any of its assets, tangible or intangible;
(e) any bonus, profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other plan or arrangement for the benefit of its current or former directors, officers or employees;
(f) any agreement under which it has advanced or loaned any amount to any of its current or former directors, officers or employees;
(g) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;Effect; and
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxiv) any distribution, joint marketing or development agreement;
(xxvh) any agreement pursuant to which the Company has granted or may grant any Subsidiary is obligated to provide maintenance, support or training for its products, other than 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 delivered to Parent a correct and complete copy ordinary course of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts")business. Except as set forth in Part 2.12(b) of the Company Disclosure Letter, with With respect to each such agreementContract or IP Contract: (A) the agreement, with respect to the Company and, to the Company's and the Principal Stockholders' Knowledge, all other parties thereto, agreement is legal, valid, binding, enforceable, binding and in full force and effect in all respectseffect, subject to the Enforceability Limitations; (B) neither the Company norCompany, any Subsidiary, nor any other party is in material breach or default and, to the Company's or the Principal Stockholders' ’s Knowledge, any other Party is in breach or default, and no event has occurred, which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under the agreement; (C) no Party the Company has not and, to the Company’s Knowledge, each other party to such agreement has not repudiated any provision of the agreement; and (D) there are no disputes, oral agreements or forbearance programs in effect; and (E) to its Knowledge, the Company does is not have any reason to believe aware of facts that would reasonably prevent the service or products called for thereunder cannot to be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payterms.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as set forth on ------------------------------------- Schedule 2.17(a), the Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;collective bargaining agreements,
(ii) any agreement concerning a partnership employment or joint venture;consulting agreement, contract or commitment with any officer, director, employee or member of the Company's Board of Directors, other than those that are terminable by the Company,
(iii) any 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xiviv) any employment or consulting agreement, contract or commitment 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;,
(xvv) 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;,
(xvivi) any fidelity or surety bond or completion bond;,
(xviivii) any lease of personal property having a value individually obligating the Company to make annual payments in excess of $25,000;10,000,
(xviiiviii) any agreement of indemnification or guaranty;guaranty (other than as set forth in end-user license agreements),
(xixix) 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;,
(xxx) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000;,
(xxixi) 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 ordinary course of Business;the Company's business,
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;,
(xxiiixiii) any open purchase order or contract for the purchase of raw materials involving $10,000 25,000 or more;,
(xxivxiv) any construction contracts,
(xv) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or development merchant agreement;,
(xxvxvi) any agreement pursuant to which the Company has granted or may be obligated to grant in the future, to any party, 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,;
(xxvixvii) 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 developed and/or delivered advanced or has received funds from loaned any Governmental Entity amount to develop and/or deliver any Intellectual Property; stockholder of the Company or any director, officer, employee, or consultant other than business travel advances in the ordinary course of business consistent with past practice, or
(xxviixix) any other agreement, contract or commitment agreement that involves $25,000 or more or in future payments and is not cancelable without penalty within thirty ninety (3090) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.17(b), the Company has delivered not breached, violated or defaulted under 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 Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(abe set forth on Schedule 2.17(a), Part 2.11(q)Schedule 2.14(b) or Schedule 2.14(c) (any such agreement, Part 2.11(r)contract or commitment, Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "ContractsContract"). 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, Each Contract is legal, valid, binding, enforceable, and in full force and -------- effect and, except as otherwise disclosed in all respects; (B) neither the Company norSchedule 2.17(b), is not subject 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 default thereunder 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 has knowledge by any party obligated to paythe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Inktomi Corp)
Agreements, Contracts and Commitments. Schedule 2.8 sets forth, as of the date of this Agreement, a true and complete list of, and Seller has made available to Acquirors true and complete copies of, the following Contracts (other than any Labor Agreements or Benefit Plans disclosed on Schedule 2.14(a)) (collectively, together with the Contracts for the Licensed Intellectual Property, and the Lease Documents (the “Material Contracts”)):
(a) Part 2.12(a) each Contract of the Company Disclosure Letter lists involving aggregate payments by or to the Company of more than $100,000 in fiscal year 2021;
(b) each Contract of the Company that contains “requirements” provisions or other provisions obligating the Company to purchase or obtain a minimum or specified amount of any product or service from any Person;
(c) all Contracts pursuant to which any Indebtedness for borrowed money of the Company is outstanding or may be incurred, and (ii) all Contracts of or by the Company guaranteeing any Indebtedness of any other Person;
(d) all Contracts pursuant to which the Company has agreed not to, or which, following the consummation of the transactions contemplated by this Agreement, would restrict the ability of the Company to compete with any Person in any business or in any geographic area or to engage in any business or other activity, other than any Lease Document, including any restrictions relating to “exclusivity” or any similar requirement in favor of any Person other than the Company pursuant to which any material benefit is required to be given or lost as a result of so competing or engaging;
(e) all Contracts to which the Company is party granting any license to any material right, property or other asset (other than Intellectual Property);
(f) all Contracts pursuant to which material Intellectual Property rights are licensed from the Company to a third party;
(g) any employment, consulting, independent contractor, severance, deferred compensation, retention or change of control agreement or arrangement;
(h) any union collective bargaining agreement or other written agreement with any union;
(i) each management agreement, Lease Document, franchise or oral contractsoperating agreement relating to all or any portion of the Real Property involving aggregate annual payments by the Company in excess of $50,000;
(j) each Contract involving the purchase or sale, agreementsoption to purchase or sell, commitments right of first refusal, right of first offer or other right to purchase, sell, dispose of, or ground lease, by merger, purchase or sale of assets or stock or otherwise, of (i) any real property, including the Real Property, or (ii) any personal property, equipment, business, Person (or equity interests thereof) or other assets (other than real property);
(k) each Contract for any construction work (including any additions or expansion) to be performed at any Real Property and under which the Company has an obligation in excess of $100,000 in the aggregate;
(l) each Contract relating to interest rate caps, collars or swaps, currency hedging transactions and other similar arrangements to which the Company is a party or by an obligor with respect thereto;
(m) all joint venture, limited liability company, partnership or other similar Contracts (including all amendments thereto) in which the Company or any holds an interest; and
(n) all Affiliate Contracts. Each Material Contract is enforceable against Seller Party thereto and, to the knowledge of its assets is bound:
Seller Parties, the other parties thereto subject to (i) any agreement under which the consequences of a default applicable bankruptcy, insolvency, reorganization, moratorium or termination could have a Material Adverse Effect on the Company;
similar Laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity. Except for any agreement concerning a partnership such matter that, individually or joint venture;
(iii) any agreement with any in the aggregate, has not and would not reasonably be expected to result in material Liability to the Company Stockholder or any of such stockholder's affiliates (other than materially impair the Company) operations or with any affiliate property of the Company;
(iv) any advertising services, e-commerce Company or other agreement involving the promotion of products and services of third parties by the Company;
(v) any agreement with customers prevent 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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 materially delay Seller from consummating the transactions contemplated by this Agreement;
, (xvii) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) any agreementeach Material Contract is valid, contract or commitment containing any covenant limiting the freedom of binding and enforceable on the Company to engage in any line of business or to compete accordance with any person;
(xx) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the its terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respectseffect; (Bii) neither the Company noror, to the Company's or the Principal Stockholders' KnowledgeSeller’s knowledge, any other Party party thereto is in breach of or defaultdefault under (or is alleged to be in breach of or default under) any Material Contract, or has provided or received any written notice of any intention to cancel, terminate, modify, refuse to perform or refuse to renew such Material Contract; and (iii) to Seller’s knowledge, no event or circumstance has occurredoccurred that, which with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a breach termination thereof or default, would cause or permit termination, modification, the acceleration or acceleration, under other changes of any right or obligation or the agreement; (C) no Party has repudiated loss of any provision benefit thereunder. As of the agreement; and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Timedate hereof, the Company will be permitted to exercise all has not given nor received any written notice of the Company's rights under such agreements intention of any Person to repudiate or terminate any Material Contract. Each Material Contract has been made available to the same extent Acquirors through the Company would have been able Virtual DataSite. Notwithstanding the foregoing, the provisions of this paragraph shall not apply with respect 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 payLease Documents.
Appears in 1 contract
Sources: Equity Purchase Agreement (Golden Entertainment, Inc.)
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as set forth on the Company Disclosure Letter lists Parent Schedule, the following written or oral contractsParent does not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xvii) 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually in excess of USD $25,00050,000 individually or USD $100,000 in the aggregate;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xxv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of USD $25,000100,000 individually or USD $250,000 in the aggregate;
(xxivi) 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 Businessthe Parent's business;
(xxiivii) any mortgages, indentures, loans or credit agreements, security agreements licensing agreement or other agreements or instruments relating contract with respect to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereofIntellectual Property Rights;
(xxiiiviii) any purchase order joint venture, partnership, and other contract involving a sharing of profits, losses, costs, or contract for liabilities by the purchase of raw materials involving $10,000 or moreParent with any third party;
(xxivix) any distributioncontract 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, joint marketing other than customary non-disclosure and confidentiality obligations contained in non-disclosure agreements entered into in the ordinary course of business, license agreements or development agreementcustomer agreements, and other than customary license restrictions that may be contained in Contracts entered into in the ordinary course of business;
(xxvx) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option power of attorney or other right to use similar agreement or acquire source-code,grant of agency;
(xxvixi) any agreement pursuant contract entered into other than in the ordinary course of business that contains or provides for an express undertaking by the Parent to which be responsible for consequential damages;
(xii) any oral or written warranty, guaranty, and or other similar undertaking with respect to product or contractual performance sold or extended by the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual PropertyParent other than in the ordinary course of business; or
(xxviixiii) any other agreementamendment, 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) All of the Company Disclosure Letter and a written summary setting Contracts set forth or required to be set forth on the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter Parent Schedule (collectively, all such agreements are referred to as the "Contracts"). Except as set forth ) are valid, binding and enforceable in Part 2.12(b) accordance --------- with their respective terms, subject to laws of the Company Disclosure Lettergeneral application relating to bankruptcy, with respect to each such agreement: (A) the agreement, with respect to the Company and, to the Company's insolvency and the Principal Stockholdersrelief of debtors and other laws of general application effecting enforcement of creditors' Knowledgerights generally, all rules of law governing specific performance, injunctive relief or other parties thereto, is legal, valid, binding, enforceableequitable remedies, and limitations of public policy; and shall be in full force and effect without penalty in all respects; (B) neither the Company nor, to the Company's or the Principal Stockholders' Knowledge, any other Party is in breach or default, and no event has occurred, which accordance 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 their terms upon consummation of the agreement; and (D) the Company transactions contemplated hereby. The Parent does not have any reason present expectation or intention of not fully performing on a timely basis in all material respects all such obligations required to believe that be performed by the service called 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 subject to cancellation or any other material modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for thereunder canlate 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 supplied in accordance with its terms set forth on the Parent Schedule. The Parent is not a party to any Contract the performance of which could reasonably be expected to have a Parent Material Adverse Effect.
(c) Company has been given access to a true and without resulting in a loss to the Company. Subject to receipt correct copy of each of the consents written Contracts that are set forth in Part 6.3(c) of on the Company Disclosure LetterParent Schedule, following the Effective Timetogether with all amendments, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment of any additional amounts waivers or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to paychanges thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lynuxworks Inc)
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as set forth on ------------------------------------- Schedule 2.12, the Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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;
(xiia) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiib) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan;
(xivc) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xvd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, under which any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the 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;
(xvie) any fidelity or surety bond or completion bond;
(xviif) any lease of personal property having a value individually in excess of $25,0005,000;
(xviiig) any agreement of indemnification or guaranty;
(xixh) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xxi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,0005,000;
(xxij) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise (or the assets of any business enterprise) or the disposition of assets of the Company outside the Ordinary Course ordinary course of Businessthe Company's business;
(xxiik) any mortgages, indentures, loans loans, letters of credit or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiig) hereof;
(xxiiil) any purchase order or contract for the purchase or manufacture by any third party of goods for resale (including, without limitation, raw materials involving materials, components, sub-assemblies and assemblies and finished goods) other than those contracts or purchase orders which both involve $10,000 5,000 or moreless and were entered into in the ordinary course of business;
(xxivm) any construction contracts;
(n) any agreement between the Company and a vendor or dealer of the Company;
(o) any distribution, joint marketing or marketing, 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 agreement which grants any third party continuing rights (exclusive or nonexclusive) to use distribute, market, develop or acquire source-code,;
(xxvi) otherwise sell any agreement pursuant to which products currently being sold by the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual PropertyCompany; or
(xxviip) 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 . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Schedule 2.12, the Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)not breached, Part 2.11(q)violated or defaulted under, Part 2.11(r)or received notice that it has breached, Part 2.12(a) and Part 2.21(b) violated or defaulted under, any of the Company Disclosure Letter and a written summary setting forth the terms and or conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts")any 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, Each Contract is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (B) neither the Company norSchedule 2.12, is not subject 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 default thereunder 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 or the Shareholders have knowledge by any party obligated to paythe Company pursuant thereto.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Global Motorsport Group Inc)
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except as contemplated by this Agreement or as set forth in Schedule 2.15 of the Company Group Disclosure Letter lists the following written or oral contractsLetter, agreements, commitments and other arrangements to which the no Group Company is a party to or bound by which the Company or any of its assets is boundthe following, which are subsisting or outstanding or in respect of which a Group Company has any current or potential future Liability:
(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);
(xia) any collective bargaining agreements;
(xiib) any agreements or arrangements that contain any redundancy, severance pay pay, or post-employment liabilities or obligationsLiabilities;
(xiiic) any other employment or consulting agreement or commitment with any officer, employee, director, Shareholder, or any other Person, other than those that are terminable at the will of a Group Company, without liability;
(d) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xve) any agreement or plan, including, without limitation, any stock option plan, stock share appreciation rights plan or stock share purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xvif) any fidelity or surety bond or completion bond;
(xviig) any Contract or group of related Contracts for the lease of personal property having a value individually in excess of $25,000(euro)10,000;
(xviiih) any agreement Contract of indemnification or guarantyguarantee;
(xixi) any agreement, contract or commitment Contract containing any covenant limiting the freedom of the any Group Company to engage in any line of business or to compete with any personPerson;
(xxj) any agreement, contract or commitment Contracts relating to capital expenditures and or involving future payments (other than employment arrangements) individually in excess of $25,000(euro)25,000;
(xxik) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money by any Group Company or extension of credit, including guaranties referred credit to in clause (xviii) hereofany Group Company;
(xxiiil) any Contract concerning confidentiality;
(m) any purchase order or contract Contract for the purchase of raw materials (excluding capital expenditures) involving $10,000 (euro)10,000 or moremore individually or (euro)3,000,000 or more in the aggregate;
(xxivn) any distribution, joint marketing or development agreementconstruction contracts;
(xxvo) any agreement sales representative, original equipment manufacturer, value added reseller, remarketer, or other Contract for distribution of the product or services of any Group Company or the product or services of any other Person, or any dealer, join marketing, or development Contract;
(p) any Contract pursuant to which the any Group Company has granted advanced or may grant loaned any amount to any Person, other than business travel advanced 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 PropertyOrdinary Course of Business; or
(xxviiq) to the extent not reported in the Group Financial Statements, any other agreement, contract or commitment Contract (other than Contracts relating to employment) that involves $25,000 involve payment by any Group Company of (euro)50,000 or more or in respect of such Contract and which is not cancelable cancellable without penalty within thirty (30) days.
(b) The . No Group Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)breached, Part 2.11(q)violated, Part 2.11(r)or defaulted under, Part 2.12(a) and Part 2.21(b) or received notice that it has breached, violated or defaulted under, any of the Company Disclosure Letter and a written summary setting forth the terms and or conditions of each oral agreement referred any Contract or commitment required to in be set forth pursuant to Section 2.14 or Section 2.15 of this Agreement (any such parts of the Contract or commitment, a "Company Disclosure Letter (collectively, all such agreements are referred to as the "ContractsContract"). Except as set forth in Part 2.12(b) To the knowledge of each Group Company and each of the Shareholders, each 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, Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the and is not subject to any default thereunder by any party obligated to any Group Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 paypursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of the Company Disclosure Letter lists the following written or oral contractsExcept for this Agreement, agreements, commitments and other arrangements to which the Company is not a party to or bound by which the Company or any of its assets is boundthe following Contracts:
(i) (A) any agreement under which Contract providing for the consequences payment of a default any severance, change of control payments, retention bonus, equity acceleration or termination could have a Material Adverse Effect pay (in cash or otherwise, other than as required by applicable Law) or similar payment or benefit on account of the Companyconsummation 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 providing for annual base compensation or fees that exceed $260,000 that is not immediately terminable at-will by the Company without advance notice, severance, or other similar cost or Liability (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), or (C) any Collective Bargaining Agreement;
(ii) any agreement concerning a partnership Lease Agreement or joint ventureany lease of any personal property involving future payments in any amount in excess of $100,000 in fiscal year 2024 or any other future fiscal year;
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in any amount in excess of $25,00025,000 in fiscal year 2024 or any other future fiscal year;
(xxiiv) 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 of Business;
(xxiiv) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereofcredit or other Indebtedness;
(xxiiivi) any purchase order or contract Contract or group of related Contracts with the same vendor or supplier for the purchase of raw materials involving tangible items of equipment or related services in an amount payable by the Company in excess of $10,000 or more50,000 in the aggregate in any fiscal year;
(xxivvii) any distributionContract (A) pursuant to which any Intellectual Property or Training Data 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, joint marketing off-the-shelf software not incorporated into Company Products and procured for aggregate fees of $50,000 or development less, (2) licenses for Open Source Software, and (3) non-exclusive licenses granted by the Company to customers, service providers, and vendors in the Ordinary Course of Business on standard forms of agreement, (B) under which any Person has developed or has been engaged to develop any Intellectual Property for the Company (excluding agreements with employees and contractors entered into in the ordinary course of business on standard forms of agreement under which such employees and contractors assign rights in all developed material 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 settlement agreements, coexistence agreements, covenant not to sue agreements, and consent to use agreements;
(xxvviii) any Contract with a Top Supplier;
(ix) any Contract with a Top Customer;
(x) any Contract providing for “offshore” or outsourced development of any material items of Intellectual Property by, for or on behalf of the Company;
(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 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 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 granted acquired a business or may grant in entity, or a material portion of the futureassets of a business or entity, to any partywhether by way of merger, a source-code consolidation, purchase of stock, purchase of assets, exclusive license or option otherwise, or any Contract pursuant to which it has any material ownership interest in any other right to use or acquire source-code,Person;
(xxvixvii) any Contract with any Interested Party, including any agreement pursuant to which of indemnification with officers or directors of the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property; orCompany;
(xxviixviii) 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; and
(xx) any other agreement, contract Contract or commitment 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 $25,000 100,000 in the aggregate in fiscal year 2024 or more or is not cancelable without penalty within thirty (30) daysany other future fiscal year.
(b) The Company has delivered to Parent a made available correct and complete copy copies of (1) each written agreement Contract required to be disclosed 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 (as amended to date2) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions summaries of each oral agreement referred to in such parts Material Contract. For the purposes of this Agreement, each of the Company Disclosure Letter (collectivelyforegoing 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, all 3.12, 3.13 and 3.19(a) if such agreements are referred to Contract had been in effect as the "Contracts"). Except as set forth in Part 2.12(b) of the Agreement Date, shall each be a “Material Contract” and collectively are the “Material Contracts.”
(c) The Company Disclosure Letterhas performed in all material respects all of the obligations required to be performed by it and is entitled to all benefits under, with and has not received any written or, to the Knowledge of the Company, oral notice alleging it to be in default in respect of, any Material Contract. Each of the Material Contracts is in full force and effect, subject only to each such agreement: the effect, if any, of the Enforcement Exceptions. There exists (Ax) no default or event of default under any Material Contract by the agreementCompany or, to the Knowledge of the Company, any other party thereto, and (y) no event, occurrence, condition or act, with respect to the Company andCompany, or to the Knowledge of the Company's and , with respect to any other party to a Material Contract, that, with the Principal Stockholders' Knowledgegiving of notice, all other parties theretothe lapse of time, is legalwould reasonably be expected to (i) become a default or event of default under any Material Contract or (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the right to a rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of any material obligation of the Company under any Material Contract or (D) the right to cancel (other than at the expiration of the term of any Contract in accordance with its terms), terminate or modify any Material Contract. The Company has not received any written (nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all Knowledge of the Company's rights under such agreements , oral) notice to the same extent the Company would have been able cancel, fail to had the Merger not occurred and without the payment of renew or adversely modify any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to payMaterial Contract.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (CCC Intelligent Solutions Holdings Inc.)
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except for any Benefit Plan, this Agreement, the Related Agreements and the Contracts specifically identified on Section 3.12 of the Disclosure Schedule, as of the Agreement Date, none of the Company Disclosure Letter lists nor any of its Subsidiaries is a party to, bound by or uses the benefits of any of the following written Contracts:
(i) any Contract involving aggregate consideration in excess of $250,000 payable by the Company or oral contractsany Subsidiary and which, agreementsin each case, commitments cannot be cancelled by the Company or any Subsidiary without penalty or without more than 90 days’ notice;
(ii) any Contract that requires the Company or any Subsidiary to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) any Contract that provides for the indemnification by the Company or any Subsidiary of any Person, or the assumption of any Tax, environmental or other Liability of any Person;
(iv) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) in the past five (5) years;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and other arrangements advertising Contracts to which the Company or any Subsidiary is a party party;
(vi) (A) any form of employment, contractor or consulting Contract with any Employee, consultant or independent contractor and any individual agreements that materially deviates from the applicable form; (B) any Contract to grant any severance, change of control payments, retention bonus, or termination pay (in cash or otherwise) to any Employee; (C) each employment agreement or offer letter that is not immediately terminable at-will by the Company or any Subsidiary without advance notice, severance, or other cost or liability, and which provide for annual compensation in excess of $250,000; (D) any form bonus or commission plan, or any bonus agreements or commission agreements with any Employee, and the schedule of bonus or commission commitments made to Employees; or (E) any separation agreement, settlement agreement with any Employee or other Person, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity, (1) pursuant to which claims for harassment or discrimination were released; or (2) under which the Company or any of its assets is bound:
(i) Subsidiaries has 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 clauseoutstanding Liability;
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) 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 Business;
(xxii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit (other than any Contract related to (x) intercompany Indebtedness between or among the Acquired Companies, including guaranties referred to or (y) any accounts receivable incurred in clause (xviii) hereofthe Ordinary Course of Business;
(xxiiiviii) any purchase order Contract with any Governmental Entity to which the Company or contract for the purchase of raw materials involving $10,000 or moreany Subsidiary is a party;
(xxivix) any distribution, joint marketing or development agreement;
(xxv) any agreement Contract pursuant to which the Company or any of its Subsidiaries is bound to or has granted committed to provide any product or may grant in the future, service to any party, third party on a source-code license most favored nation basis or option or other right to use or acquire source-code,similar terms;
(xxvix) any agreement pursuant Contract to which the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver Subsidiary is a party that provide for any Intellectual Property; orjoint venture, partnership or similar arrangement by the Company;
(xxviixi) any Contract between or among the Company or any Subsidiary, on the one hand, and any Affiliates (other agreementthan the Company or any such Subsidiary), contract on the other hand, that will not be terminated effective as of the Closing Date (other than employment, incentive, compensatory and similar agreements, and Charter Documents);
(xii) all collective bargaining agreements or commitment Contracts with any Union to which the Company or any Subsidiary is a party;
(xiii) any Contract or plan, any of the benefits of which shall become payable, be increased, or the vesting of benefits of which shall be accelerated, as a result of the occurrence of any of the transactions contemplated by this Agreement;
(xiv) any Affiliated Professional Entity Agreement;
(xv) any Contract with a Top Supplier;
(xvi) Contracts with the top ten (10) Company Payment Programs, as measured by the net revenue under such Contracts for the twelve (12)-month period ending December 31, 2021;
(xvii) any Contract required to be disclosed on Section 3.9 of the Disclosure Schedule; and
(xviii) any Contract or other arrangement to settle any Legal Proceeding or to settle any threatened or reasonably anticipated Legal Proceeding, in each case, which involves payment of, or an ongoing obligation to pay, more than $100,000 or that involves $25,000 or more or is not cancelable without penalty within thirty (30) daysimposes any material obligations on the Company that will continue after the Closing.
(b) The Company has delivered to Parent a made available correct and complete copy copies of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 Contract required to paybe disclosed pursuant to Sections 3.9 and 3.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as described in ------------------------------------- Disclosure Schedule Section 2.14, the Company Disclosure Letter lists the following written or oral contractsdoes not have continuing obligations under, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any material employment or consulting agreement, contract or commitment 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;
(xvii) 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;
(xvi) any fidelity or surety bond or completion bond;
(xviiiii) any lease of personal property having a value annual lease payments individually in excess of $25,00050,000;
(xviii) any agreement of indemnification or guaranty;
(xixiv) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of its current business or to compete with any personPerson;
(xxv) any agreement, contract or commitment relating to capital expenditures and involving future payments individually or in the aggregate in excess of $25,00050,000;
(xxivi) 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 ordinary course of Businessthe Company's business;
(xxiivii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiiviii) any purchase order or contract for the purchase of raw materials involving $10,000 50,000 or more;
(xxivix) any material distribution, joint marketing or development agreement;
(xxvx) any agreement pursuant agreement, contract, commitment or loan to which or with any of the Company has granted Company's shareholders, officers, directors, Affiliates, Associates, employees or may grant in the futureany Person who is an Affiliate or Associate of any such shareholder, to any party, a source-code license officer 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 Propertydirector; or
(xxviixi) 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 delivered to Parent a correct Accurate and complete copy of each written agreement copies (as amended to date) listed in Part 2.10(a)together with all ancillary documents thereto, Part 2.11(q)including any amendments, Part 2.11(r), Part 2.12(a) consents for alterations and Part 2.21(bdocuments regarding variations) of the Company items set forth in Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred Schedule Section 2.14 in response to in such parts of the Company Disclosure Letter Section 2.14(a) (collectively, all such agreements are referred to as the "ContractsCOMMITMENTS")) have been delivered to the Purchaser. Except as set forth in Part 2.12(b) of the Company Disclosure LetterSchedule Section 2.14, with respect to each such agreementCommitment: (Ai) each is a valid and binding obligation of the agreement, with respect parties thereto (except as the enforceability thereof may be limited by principles of public policy and subject to the Company andlaws of general application relating to bankruptcy, to the Company's insolvency and the Principal Stockholders' Knowledgerelief of debtors and to rules of law governing specific performance, all injunctive relief or other parties thereto, is legal, valid, binding, enforceable, equitable remedies) and in full force and effect in all respects; effect, (B) neither the Company nor, 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 (Dii) the Company does is not have in material default in the performance of any reason to believe that the service called for of its obligations thereunder cannot be supplied or in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without 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 (iv) upon consummation of the transactions contemplated by this Agreement and the Related Agreements, without providing notice to or payments which 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 Company would otherwise be required to payparties thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as set forth in Section 2.16 of the Disclosure Schedule (specifying the appropriate paragraph):
(a) Part 2.12(a) of Neither the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company nor any of its Subsidiaries is a party or by which the Company or any of its assets to, nor is boundit bound by:
(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 servicesemployment, 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor, or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, contract contract, or commitment 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;
(xvii) 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually in excess of $25,00020,000 individually or $50,000 in the aggregate;
(xviiiv) any agreement of indemnification or guarantyguaranty 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;
(xix) 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;
(xxvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00020,000 individually or $50,000 in the aggregate;
(xxivii) 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 Businessthe Company’s business;
(xxiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiiix) any purchase order or contract for the purchase of raw materials involving in excess of $10,000 20,000 individually or more$50,000 in the aggregate;
(xxivx) any construction contracts;
(xi) any dealer, distribution, joint marketing marketing, strategic alliance, affiliate or development agreementagreement (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));
(xxvxii) any agreement pursuant 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 has granted directly or may grant in the future, to indirectly holds any party, a source-code license or option or other right to use or acquire source-code,interest;
(xxvixiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement pursuant to which for use or distribution of the products, technology or services of the Company has developed and/or delivered or has received funds 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 any Governmental Entity the Company’s standard forms agreement including attachments (copies of which have been provided to develop and/or deliver any Intellectual PropertyParent); or
(xxviixiv) 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) The Each Material Contract to which the Company has delivered to Parent or any of its Subsidiaries is a correct party or any of their respective properties or assets (whether tangible or intangible) is subject is a valid and complete copy of each written binding agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth or its Subsidiaries, as the terms and conditions of case may be, enforceable against each oral agreement referred to in such parts of the Company Disclosure Letter (collectivelyparties thereto in accordance with its terms, all such agreements are referred to as the "Contracts"). Except as set forth and is in Part 2.12(b) of the Company Disclosure Letter, with respect to each such agreement: (A) the agreement, full force and effect with respect to the Company or the applicable Subsidiary 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 in all respects; (B) neither the Company nor, to Knowledge of the Company's or the Principal Stockholders' Knowledge, any other Party is party thereto. The Company and each of its Subsidiaries are in breach compliance with and have not breached, violated or default, and no event has occurred, which with notice or lapse of time would constitute a breach or defaultdefaulted under, or permit terminationreceived notice that they have breached, modificationviolated or defaulted under, or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have terms or conditions of any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss such Material Contract, nor to the Company. Subject to receipt of the consents set forth in Part 6.3(c) Knowledge of the Company is any party obligated to the Company or any of its Subsidiaries pursuant to any such Contract subject to any breach, violation or default thereunder, nor does the Company have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company, its Subsidiaries or any such other party. True and complete copies of each Material Contract disclosed in the Disclosure LetterSchedule or required to be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, following the Effective Time“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 its obligations under the Company's rights under such agreements Material Contracts that remain to be performed after the same extent date hereof.
(d) All outstanding indebtedness of the Company would have been able to had the Merger not occurred and or 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 paypenalty.
Appears in 1 contract
Sources: Merger Agreement (Harmonic Inc)
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except as set forth in Section 2.15 of the Company Disclosure Letter lists Schedule (specifying the following written or oral contractsappropriate paragraph), agreementsas of the date hereof, commitments and other arrangements to which neither the Company nor any of its Subsidiaries is a party to, or by which the Company or any of its assets is boundbound by:
(i) (A) any agreement under which the consequences employment, contractor (whether an individual or other Person) or consulting (whether an individual or other Person) agreement, contract or commitment providing for annual compensation in excess of a default $50,000 or (B) any agreement, contract or commitment to grant any severance or termination could have a Material Adverse Effect on the Companypayment (in cash or otherwise) to any employee, consultant or contractor in excess of $25,000;
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planEmployee 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually in excess of $25,000100,000 individually or $250,000 in the aggregate;
(xviiiv) any agreement of indemnification or guarantyguaranty by the Company or its Subsidiaries that would reasonably be expected to result in material liability;
(xix) 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;
(xxvi) any agreement, contract or commitment relating to capital expenditures and involving which involves future payments in excess of $25,000100,000 individually or $250,000 in the aggregate;
(xxivii) any agreement, contract or commitment Contract relating to the disposition or acquisition of material assets or any interest in any material business enterprise outside the Ordinary Course ordinary course of Businessthe Company’s business;
(xxiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred other than (A) accounts receivables and payables and (B) loans to in clause (xviii) hereofor from direct or indirect wholly-owned Subsidiaries;
(xxiiiix) any purchase order or contract for the purchase of raw materials tangible assets involving in excess of $10,000 100,000 individually or more$250,000 in the aggregate;
(xxivx) any material dealer, distribution, joint marketing marketing, affiliate, sales representative, original equipment manufacturer, value added, remarketer, reseller, or development independent software vendor agreement;
(xxvxi) any material nondisclosure, confidentiality or similar agreement with any of the Persons specified in Section 2.15(a)(xi) of the Disclosure Schedule;
(xii) any joint venture or joint development arrangement pursuant to which the Company has granted or may grant will have an ongoing obligation (other than non-exclusive licenses of the Company Products entered into 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 Propertyordinary course of business); or
(xxviixiii) any other agreement, contract or commitment that involves payment by the Company of $25,000 100,000 individually or $250,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 90 days.
(b) The Company has delivered made available to Parent a correct true and complete copy copies of each written agreement Contract (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) or summaries of the Company Disclosure Letter and a written summary setting forth the material terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter same if such copies are unavailable or incomplete) required to be disclosed pursuant to Section 2.2, Section 2.12, Section 2.13, Section 2.14, and this Section 2.15 (each, a “Material Contract” and collectively, all such agreements are referred to as the "“Material Contracts"”). .
(c) Except as set forth in Part 2.12(bSection 2.15(c)(i) of the Disclosure Schedule, each Material Contract to which the Company Disclosure Letteris a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company, and to the Company’s Knowledge, each other party thereto, enforceable against the Company, and to the Company’s Knowledge, each other party thereto, in accordance with respect to each such agreement: (A) the agreement, its terms and is in full force and effect with respect to the Company and, to the Company's ’s Knowledge, each other party thereto subject to (i) laws of general application relating to bankruptcy, insolvency and the Principal Stockholders' Knowledgerelief of debtors and (ii) rules of law governing specific performance, all injunctive relief and other parties theretoequitable remedies. Except as set forth in Section 2.15(c)(ii) of the Disclosure Schedule, is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company noris in compliance with and has not materially breached, violated or defaulted under, or received written notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor to the Company's ’s Knowledge is any party obligated to the Company pursuant to any Material Contract subject to any material breach, violation or default thereunder, nor does the Principal Stockholders' KnowledgeCompany have Knowledge of any presently existing facts or circumstances that, any other Party is in breach or default, and no event has occurred, which with notice or the lapse of time time, giving of notice, or both, would constitute such a breach material breach, violation or default, or permit termination, modification, or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) default by the Company does not have or any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents such other party.
(d) Except as set forth in Part 6.3(cSection 2.15(d) of the Company Disclosure LetterSchedule, following the Effective Time, all outstanding indebtedness for borrowed money of the Company will may be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and 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 paypenalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(aCompany Agreements. Except as set forth on Schedule 3.20(a) of the Company Disclosure Letter lists the following written or oral contractshereto, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets is boundto:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing severance, profit-sharing, stock option, employee stock purchase or retirement plansplan, contract or arrangement or other Company Plan;
(ii) any employment agreement with any present employee, officer, director or consultant (or former employees, officers, directors and consultants to the extent there remain at the date hereof obligations to be performed by the Company);
(iii) any agreement for personal services or employment with a term of service or employment specified in the agreement or any agreement for personal services or employment in which the Company has agreed on the termination of such agreement to make any payments greater than those that would otherwise be imposed by law;
(iv) any agreement of guarantee or indemnification;
(v) any agreement or commitment containing a covenant limiting or purporting to limit the freedom of the Company (a) to compete with any person in any geographic area, (b) to engage in any line of business, or (c) to hire or solicit for employment any individual;
(vi) any Company Lease or personal property lease under which the Company is lessee;
(vii) any joint venture or profit-sharing agreement;
(viii) except for trade indebtedness incurred in the ordinary course of business and reflected on the Company Balance Sheet, any loan or credit agreements providing for the extension of credit to the Company or any instrument evidencing or related in any way to indebtedness incurred in the acquisition of companies or other employee benefit plans entities or arrangementsindebtedness for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, lease, guarantee, or otherwise that individually is in the amount of $2,500 or more;
(ix) any license or royalty agreement other than those disclosed on Schedule 3.17(d);
(x) any agreement or arrangement with any third party to develop any intellectual property or other asset expected to be used or currently used or useful in the Company's business;
(xi) any agreement or arrangement for the Company to develop any intellectual property or other asset for any third party;
(xii) any agreement or arrangement providing for the payment of any commission based on sales;
(xiii) any agreement for the sale or license by or to the Company of materials, products, services or supplies that involves future payments to the Company of more than $2,500;
(xiv) any employment agreement for the purchase by the Company of any materials, equipment, services, or consulting agreementsupplies, contract that either (A) involves a binding commitment by the Company to make future payments totaling in excess of $2,500 and cannot be terminated by it without penalty upon less than one month's notice or commitment 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 (B) was not entered into in the Companyordinary course of business;
(xv) any agreement or plancommitment for the acquisition, including, without limitation, any stock option plan, stock appreciation rights plan construction or stock purchase plan, any sale of the benefits of which will fixed assets owned or to be increased, or the vesting of benefits of which will be accelerated, owned by the occurrence of any of the transactions contemplated Company that involves future payments 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 Agreementit totaling more than $2,500;
(xvi) any fidelity agreement or surety bond commitment to which present or completion bondformer directors or officers (or their Affiliates or members of their immediate families) or Affiliates (or directors or officers of an Affiliate) are also parties;
(xvii) any lease agreement not described above (ignoring, solely for this purpose, any dollar amount thresholds in those descriptions) involving the payment or receipt by the Company of personal property having a value individually in excess of more than $25,000;2,500; or
(xviii) any agreement of indemnification or guaranty;
(xix) any agreement, contract or commitment containing any covenant limiting not described above that was not made in the freedom of the Company to engage in any line ordinary course of business or to compete with any person;
(xx) 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 that is material to the disposition financial condition, business, operations, assets, results of operations or acquisition of assets or any interest in any business enterprise outside the Ordinary Course of Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all prospects of the Company's rights under such agreements 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.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept for this Agreement, the Related Agreements and the Contracts specifically identified on Section 3.11(d) of the Company Disclosure Letter lists Schedule (with each of such Contracts specifically identified or cross-referenced under subsection(s) of such Section 3.12 of the following written Disclosure Schedule that correspond to the Subsection or oral contractsSubsections of this Section 3.12 of the Disclosure Schedule), agreementsas of the Agreement Date, commitments and other arrangements to which none of the Company nor any of its Subsidiaries is a party to, bound by or uses the benefits of any of the following Contracts:
(i) (A) any employment, independent contractor or consulting Contract with any current Employee (other than any Personnel Agreements), identifying whether any such Contract is not immediately terminable at-will by the Company without contractual severance, advance notice or other cost or liability (B) any Contract for severance, change of control payments or vesting acceleration, retention bonuses, or termination pay (in cash or otherwise) to any Employee or other separation agreement, (C) any other form of Employee Agreement with a current Employee (other than any Personnel Agreements), (D) any bonus or commission plan, or any bonus agreements or commission agreements with any Employee, and a schedule of bonus or commission commitments made to Employees, or (E) any settlement agreement with any Employee or other Person, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity, (1) pursuant to which claims for harassment or discrimination were released; or (2) under which the Company or any of its assets is bound:
Subsidiaries has any current actual or potential Liability (i) any agreement under which in each case, other than waiver and releases in exchange for severance in the consequences of a default or termination could have a Material Adverse Effect on the Companynormal course);
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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 (A) shall be increased, or the vesting of {N4442029.10} 255288355 v23 benefits of which will shall be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or (B) 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;
(xvi) any fidelity or surety bond or completion bond;
(xviiiii) any lease of any real property or personal property having a value individually in excess of $25,000property;
(xviiiiv) any agreement of indemnification or guaranty;
(xix) 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;
(xx) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in any amount in excess of $25,0005,000 individually or $100,000 in the aggregate, in each case in any fiscal year;
(xxiv) 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 of Business;
(xxiivi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit or other Indebtedness;
(vii) any purchase order or Contract for the purchase of tangible items of equipment or related services in any amount in excess of $5,000 individually or $100,000 in the aggregate, including guaranties referred in each case in any fiscal year;
(viii) any Inbound License;
(ix) any Outbound License;
(x) any Contract with a Top Customer;
(xi) any Contract with a Top Supplier;
(xii) any Contract pursuant to which (A) the Company resells, distributes, or acts as a sales agent, OEM or other channel partner with respect to any products or services of a third party; or (B) any third party product or service is incorporated into, integrated with, or offered through or as a part of the Company Products;
(xiii) any Contract with a third party service provider to provide services to the Company’s customers as part of or in clause connection with Company Products;
(xiv) any confidentiality and non-disclosure agreements (whether the Company or any of its Subsidiaries is the beneficiary or the obligated party thereunder), other than with Parent or any of its Subsidiaries or those related to commercial transactions in the Ordinary Course of Business that are not individually material;
(xv) any Contract with non-Employee third parties 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;
(xvi) any Contract required to be disclosed on Section 3.9 of the Disclosure Schedule; {N4442029.10} 255288355 v23
(xvii) any Contract with federal, state, city, county, parish, municipal or other Governmental Entities, or with another entity pursuant to that entity’s or any higher tier entity’s Contract with federal, state, city, county, parish, municipal or other Governmental Entities;
(xviii) hereof(A) any management service, legal partnership or joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons and (C) any Contract that involves the payment of royalties to any other Person by the Company or any Subsidiary;
(xix) any agency, dealer, distribution, sales representative, remarketer, reseller, or other Contract for the distribution of Company Products;
(xx) any Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation basis or similar terms;
(xxi) any Contract granting any license or other rights to or from the Company or any of its Subsidiaries with respect to Personal Information, other than grants to service providers to use such Personal Information in connection with the provision of services to the Company or any of its Subsidiaries;
(xxii) other than with respect to this Agreement and the Letter of Intent, any standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of the Company or any of its Subsidiaries or assets of the Company or any of its Subsidiaries or otherwise seeking to influence or exercise control over the Company or any of its Subsidiaries, or any Contract pursuant to which it has any material ownership in any other person;
(xxiii) any purchase order Contract pursuant to which the Company or contract for any of its Subsidiaries has acquired a business or entity, or a material portion of the assets of a business or entity, whether by way of merger, consolidation, purchase of raw materials involving $10,000 stock, purchase of assets, exclusive license or moreotherwise;
(xxiv) any distributionagreement of indemnification with officers, joint marketing directors or development agreementmanagers of the Company or any of its Subsidiaries;
(xxv) any agreement pursuant to which Contract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained by the Company has granted or may grant any of its Subsidiaries, in connection with this Agreement and the future, to any party, a source-code license or option or other right to use or acquire source-code,transactions contemplated hereby;
(xxvi) any agreement pursuant Contract or other arrangement to which the Company has developed and/or delivered settle any Legal Proceeding or has received funds from to settle any Governmental Entity to develop and/or deliver any Intellectual Property; orthreatened or reasonably anticipated Legal Proceeding;
(xxvii) any Contract relating to a referral or partner arrangement under which the Company pays or receives compensation in exchange for the referral of a customer;
(xxviii) any Contract with a third party payor, including Governmental Entities; and
(xxix) any other agreement, contract or commitment Contract that involves the payment or receipt by the Company or any of its Subsidiaries of $25,000 5,000 individually or more $100,000 in the aggregate or more, in each case in any fiscal year, and is not cancelable without penalty within thirty ninety (3090) days.. {N4442029.10} 255288355 v23
(b) The Company has delivered to Parent a made available correct and complete copy copies of each written agreement Contract required to be disclosed pursuant to Sections 3.2, 3.9, 3.10, 3.11 (as amended including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement and each Contract that is excluded for listing purposes only but is otherwise applicable to date) listed in Part 2.10(athe Section), Part 2.11(q3.12 and 3.19(a). For the purposes of this Agreement, each of the foregoing Contracts referenced in this subsection as well as any Contracts entered into subsequent to the Agreement Date and prior to the Closing Date that would have been required to be disclosed pursuant to Sections 3.2, 3.9, 3.10, 3.11 (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement and each Contract that is excluded for listing purposes only but is otherwise applicable to the Section), Part 2.11(r)3.12 and 3.19(a) if such Contract had been in effect as of the Agreement Date, Part 2.12(ashall each be a “Material Contract” and collectively are the “Material Contracts.”
(c) and Part 2.21(b) Each of the Company Disclosure Letter and a written summary setting forth its Subsidiaries has performed all the terms obligations required to be performed by it and conditions of each oral agreement referred is entitled to all benefits under, and has not received notice or other communication that it is in such parts default of, any Material Contract. Each of the Material Contracts is valid, binding and enforceable against the Company Disclosure Letter or its Subsidiaries (collectivelyto the extent such entity is a party to such Material Contract), all such agreements are referred and is in full force and effect, subject only to as the "Contracts"). Except as set forth in Part 2.12(b) effect, if any, of the Company Disclosure LetterBankruptcy and Equity Exception. There exists no default or event of default or event, with respect to each such agreement: (A) the agreementoccurrence, condition or act, with respect to the Company andor any of its Subsidiaries, or to the Knowledge of the Company's and , with respect to any other contracting party, that, with the Principal Stockholders' Knowledgegiving of notice, all the lapse of time or the happening of any other parties theretoevent or condition, is legalwould reasonably be expected to (i) become a material default or event of default under any Material Contract or (ii) give any third party (A) (A) the right to declare a material default or exercise any remedy under any Material Contract, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company norright to a rebate, to the Company's chargeback, refund, credit, penalty or the Principal Stockholders' Knowledgechange in delivery schedule under any Material Contract, 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 the right to accelerate the maturity or performance of any provision obligation of the agreement; and Company or any of its Subsidiaries under any Material Contract, or (D) the Company does not have right to cancel, terminate or modify 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 CompanyMaterial Contract. Subject to receipt of the consents set forth in Part 6.3(c) None of the Company Disclosure Letternor any of its Subsidiaries has received any written notice or other communication regarding any actual or alleged violation or breach of, following the Effective Timedefault under, or intention to cancel or modify any Material Contract. None of the Company will be permitted nor any of its Subsidiaries has any Liability for renegotiation of Contracts with Governmental Entities. The Company has heretofore made available to exercise Parent correct and complete copies of each written Material Contract, together with any and all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred material amendments 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 paysupplements thereto and “side letters” and similar documentation relating thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(aSchedule 3.13 (with paragraph references corresponding to those set forth below) sets forth an accurate and complete description of the Company Disclosure Letter lists the following all material commitments, contracts and agreements (whether written or oral contracts, agreements, commitments and other arrangements oral) to which the Company a Seller is a party or by which its Assets are bound including without limitation the Company or any of its assets is bound:following (collectively, the “Material Agreements”):
(i) any agreement under each contract, agreement, or commitment, whether in the Ordinary Course of Business or not, which involves the consequences performance of services by or for, or the delivery of goods by or to, or capital expenditures by a default or termination could have a Material Adverse Effect on the CompanySeller in excess of $10,000;
(ii) any indenture, loan agreement concerning or note under which a partnership Seller has outstanding Indebtedness, obligations or joint ventureliabilities for borrowed money;
(iii) any agreement with any Company Stockholder lease or any sublease for the use or occupancy of such stockholder's affiliates (other than the Company) or with any affiliate of the Companyreal property;
(iv) any advertising services, e-commerce or other agreement involving that restricts the promotion right of products and services a Seller to engage in any type of third parties by the Companybusiness;
(v) any guarantee, direct or indirect, by any Person of any contract, lease or agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangementsentered into by a Seller;
(vi) any agreement obligating the Company to deliver maintenance services partnership, joint venture or future product enhancements or containing a "most favored nation" pricing clauseconstruction and operation agreement;
(vii) any agreement obligating of surety, guarantee or indemnification with respect to which a Seller is the Company to provide source code to any third party for any Company Intellectual Propertyobligor;
(viii) any agreement granting an exclusive license contract that requires a Seller to any Company Intellectual Property pay for goods or granting any exclusive distribution rightsservices substantially in excess of its estimated needs for such items or the fair market value of such items;
(ix) any contract, agreement, agreed order or consent agreement relating that requires a Seller to the acquisition by the Company of take any operating business actions or the capital stock of incur expenses to remedy non-compliance with any other personEnvironmental Law;
(x) any agreement requiring contract for the payment lease of personal property to any person or from a Seller in excess 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)$10,000;
(xi) any collective bargaining agreementsagreement between a Seller or any of its Affiliates;
(xii) any agreements profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or arrangements that contain any severance pay other similar agreement for the benefit of current or post-employment liabilities or obligationsformer directors, officers, and employees of a Seller;
(xiii) any bonus, deferred compensation, pension, profit sharing collective bargaining agreement or retirement plans, or any other employee benefit plans or arrangementscontract;
(xiv) any agreement or contract for the employment of any individual on a full-time, part-time, consulting, or consulting agreement, contract or commitment 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 Companyproviding severance benefits;
(xv) any agreement contract under which a Seller has advanced or plan, including, without limitation, loaned any stock option plan, stock appreciation rights plan or stock purchase plan, amount to any of the benefits of which will be increasedits directors, officers 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;employees; and
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) any agreement, other 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;
(xx) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) 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, material to any party, of 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 Seller not cancelable without penalty within thirty (30) daysotherwise described above.
(b) The Company Seller has delivered to Parent a true, correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) copies of the Company Disclosure Letter Material Agreements to the Buyer. All of the Material Agreements are legal, valid and binding obligations of the parties thereto, enforceable in accordance with their terms, and are in full force and effect. There are no existing defaults by any Seller under the Material Agreements, and no termination, condition or other event has occurred which (whether with or without notice, lapse of time or the happening or occurrence of any other event) would constitute a written summary setting forth the default or a basis for force majeure or other claim of excusable delay or non-performance thereunder. The terms and conditions of each oral agreement referred to the Material Agreements are reasonable and customary in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as industries and trades in which the "Contracts"). 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, enforceableSeller operate, and in full force and effect in all respects; (B) neither the Company northere are no extraordinary terms contained therein. There are no renegotiations of, or attempts to the Company's renegotiate, or the Principal Stockholders' Knowledgeoutstanding rights to renegotiate, any other Party is in breach amounts paid or defaultpayable to a Seller under current or completed Material Agreements with any Person having the contractual or statutory right to demand or require such renegotiation, and no event such Person 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 does not have any reason to believe that the service called made written demand for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payrenegotiation.
Appears in 1 contract
Sources: Asset Purchase Agreement (Omni Energy Services Corp)
Agreements, Contracts and Commitments. (a) Part 2.12(a) of the Company Disclosure Letter lists the following written 3.17.1 Premier Agreements. Except as set forth on Schedule 3.17 hereto or oral contractsany other Schedule hereto, agreements, commitments and other arrangements to which the Company Premier is not a party or by which the Company or any of its assets is boundto:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiia) any bonus, deferred compensation, pension, profit sharing severance, profit-sharing, stock option, employee stock purchase or retirement plansplan, contract or any arrangement or other employee benefit plans plan or arrangementsarrangement;
(xivb) any employment agreement with any present employee, officer, director or consulting agreementconsultant (or former employees, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreementofficers, contract or commitment under which any firm or other organization provides services directors and consultants) to the Companyextent there remain at the date hereof obligations to be performed by Premier;
(xvc) any agreement for personal services or employment with a term of service or employment specified in the agreement or any agreement for personal services;
(d) any agreement of guarantee or indemnification in an amount that is material to Premier taken as a whole;
(e) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) any agreement, contract or commitment containing any a covenant limiting or purporting to limit the freedom of the Company Premier to compete with any person in any geographic area or to engage in any line of business or to compete with any personbusiness;
(xxf) any lease other than Premier Leases under which Premier is lessee that involves, in the aggregate, payments of $25,000 or more per annum or is material to the conduct of the business of Premier;
(g) any joint venture or profit-sharing agreement (other than with employees);
(h) except for trade indebtedness incurred in the ordinary course of business and equipment leases entered into in the ordinary course of business, any loan or credit agreements providing for the extension of credit to Premier or any instrument evidencing or related in any way to indebtedness incurred in the acquisition of companies or other entities or indebtedness for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, or otherwise that individually is in the amount of $25,000 or more;
(i) any license agreement, either as licensor or licensee, involving payments (including past payments) of $25,000 in the aggregate or more, or any material distributor, dealer, reseller, franchise, manufacturer’s representative, or sales agency or any other similar material contract or commitment;
(j) any agreement granting exclusive rights to, or providing for the sale of, all or any portion of the Premier Proprietary Rights;
(k) any agreement or arrangement providing for the payment of any commission based on sales other than to employees of Premier;
(l) any agreement for the sale by Premier of materials, products, services or supplies that involves future payments to Premier of more than $25,000;
(m) any agreement for the purchase by Premier of any materials, equipment, services, or supplies, that either (i) involves a binding commitment relating by Premier to capital expenditures and involving make future payments in excess of $25,000 and cannot be terminated by it without penalty upon less than three months’ notice or (ii) was not entered into in the ordinary course of business;
(n) any agreement or arrangement with any third party for such third party to develop any intellectual property or other asset expected to be used or currently used or useful in the business of Premier;
(o) any agreement or commitment for the acquisition, construction or sale of fixed assets owned or to be owned by Premier that involves future payments by it of more than $25,000;
(xxip) any agreement, contract agreement or commitment relating to which present or former directors, officers or Affiliates of Premier, or directors or officers of any Affiliate of any of the disposition or acquisition of assets or any interest in any business enterprise outside the Ordinary Course of Businessforegoing, are also parties;
(xxiiq) any mortgagesagreement not described above (ignoring, indenturessolely for this purpose, loans any dollar amount thresholds in those descriptions) involving the payment or credit agreementsreceipt by Premier of more than $25,000, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereofthan Premier Leases;
(xxiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxiv) any distribution, joint marketing or development agreement;
(xxvr) any agreement pursuant to which the Company has granted or may grant not described above that was not made in the futureordinary course of business and that is material to the financial condition, to any partybusiness, a source-code license operations, assets, results of operations 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 Propertyprospects of Premier; or
(xxviis) any other agreementagreement that provides for any continuing or future obligation of Premier, contract involving liability to Premier of more than $25,000, actual or commitment that involves $25,000 contingent, including but not limited to any continuing representation or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has delivered to Parent a correct warranty and complete copy of each written agreement (as amended to date) listed any indemnification obligation, in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of connection with the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment disposition of any additional amounts business or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to payassets of Premier.
Appears in 1 contract
Sources: Asset Purchase Agreement (Caci International Inc /De/)
Agreements, Contracts and Commitments. (a) Part 2.12(a) of the Company Disclosure Letter lists the following written or oral contractsExcept as set forth in Schedule 2.16, agreements, commitments and other arrangements to which the Company Seller is not a party to or by which the Company or any of its assets is boundbound by:
(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);
(xia) any collective bargaining agreements;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiib) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(xivc) any employment employment, except non-material oral agreements with employees (for purposes of this Agreement "non-material oral agreements" shall mean oral agreements that individually provide for salaries of less than $45,000 per annum) or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Companycommitment;
(xvd) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviiie) any agreement of indemnification or guarantyguaranty not entered into in the ordinary course of business other than indemnification agreements between Seller and any of its officers or directors;
(xixf) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Seller to engage in any line of business or to compete with any person;
(xxg) any agreement, contract or commitment relating to future capital expenditures and involving future payments obligations in excess of $25,00025,000 and not cancelable without penalty;
(xxih) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Businessenterprise;
(xxiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiij) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxiv) any distribution, joint marketing or development agreement;
(xxvk) any distribution agreement pursuant to which the Company has granted or may grant in the future, to (identifying 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 Propertythat contain exclusivity provisions); or
(xxviil) any other agreement, contract or commitment that involves (excluding real and personal property leases and agreements relating to the purchase of computer hardware for inventory for a purchase price of up to an aggregate $100,000) which involve payment by Seller under any such agreement, contract or commitment of $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts")aggregate. 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 andSeller or, to the Company's best knowledge of Seller and the Principal Stockholders' Knowledge, all other parties thereto, is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, to the Company's or the Principal Stockholders' Knowledgeeach Seller Stockholder, any other Party is in breach party to a Seller Contract (as defined below), has not breached, violated or default, and no event has occurred, which with notice or lapse of time would constitute a breach or defaultdefaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Seller is a party or by which it is bound of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, a "Seller Contract") in such a manner as would permit termination, modificationany other party to cancel or terminate any such Seller Contract, or acceleration, under the agreement; (C) no Party has repudiated would permit any provision of the agreement; and (D) the Company does not have any reason other party to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payseek damages.
Appears in 1 contract
Sources: Merger Agreement (Vizacom Inc)
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except as contemplated by this Agreement or as set forth on Schedule 3.15 of the Company Disclosure Letter lists the following written or oral contractsSchedule, agreements, commitments and other arrangements to which neither the Company nor the Subsidiary is a party or by which the Company or any to, nor is either of its assets is boundthem bound by:
(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;
(xiia) any agreements or arrangements with any current employee or consultant that contain contains any severance pay or post-employment liabilities or obligations;
(xiiib) any collective bargaining agreements;
(c) any employment or consulting agreement, contract, or commitment with any officer, employee, individual consultant or salesperson, or consulting or sales agreement, contract, or commitment with a firm or other organization;
(d) any bonus, deferred compensation, pension, profit sharing sharing, severance, or retirement plans or agreements, or any other employee benefit plans or arrangements;
(e) any stock option or stock purchase plan or arrangement, stock appreciation, bonus, deferred compensation, pension, profit sharing, or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xvf) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan plan, or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xvig) any fidelity or surety bond or completion bond;
(xviih) any agreement, contract, or commitment for the lease of personal property having a value individually in excess of $25,0005,000;
(xviii) any agreement of indemnification or guaranty;
(xixi) any agreement, contract contract, or commitment of indemnification or guaranty other than as set forth on Schedule 3.14, subject to such reasonable variations therein that are not individually materially adverse to the Company or the Subsidiary, as the case may require;
(j) any agreement, contract, or commitment containing any covenant limiting the freedom of the Company or the Subsidiary to engage in any line of business or to compete with any personperson or entity;
(xxk) any agreement, contract contract, or commitment relating to capital expenditures and involving future payments in excess of $25,00025,000 in the aggregate;
(xxil) any agreement, contract contract, or commitment 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 Businessenterprise;
(xxiim) any mortgages, indentures, loans guarantees, loans, or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or the Subsidiary or extension of credit, including guaranties referred credit to in clause (xviii) hereofthe Company or the Subsidiary;
(xxiiin) any purchase order agreement, contract, or contract for commitment concerning confidentiality (other than those entered in the purchase ordinary and usual course of raw materials involving $10,000 or morebusiness);
(xxivo) any distributionagreement, joint marketing contract, or development agreement;
(xxv) any agreement commitment pursuant to which the Company or the Subsidiary has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,, including any agreements which provide for source code escrow arrangements;
(xxvip) any sales representative, original equipment manufacturer, value added, remarketer, or other agreement for distribution of the products, technology, or services of the Company or the Subsidiary, or the products or services of any other person or entity or any dealer, joint marketing (including any pilot program), or development agreement;
(q) any agreement, contract, or commitment pursuant to which the Company or the Subsidiary has developed and/or delivered advanced or has received funds from loaned any Governmental Entity amount to develop and/or deliver any Intellectual Propertyshareholder of the Company or the Subsidiary or any director, officer, employee, or consultant of the Company or the Subsidiary other than business travel advances in the ordinary and usual course of business, consistent with past practice; or
(xxviir) any other agreement, contract contract, or commitment that involves payment by the Company or the Subsidiary of $25,000 or more or which is not cancelable without penalty within thirty (30) 30 days.
(b) The . Neither the Company nor the Subsidiary has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a)breached, Part 2.11(q)violated, Part 2.11(r)or defaulted under, Part 2.12(a) and Part 2.21(b) or received notice that it has breached, violated, or defaulted under, any of the Company Disclosure Letter and a written summary setting forth the terms and or conditions of each oral agreement referred any agreement, contract or commitment required to be set forth on any schedule relating to the representations and warranties set forth in such parts Schedule 3.13 or on Schedule 3.15 of the Company Disclosure Letter Schedule (collectivelyany such agreement, all such agreements are referred to as the contract or commitment, a "ContractsContract"). Except as set forth in Part 2.12(b) Each of the Company Disclosure LetterContracts is legal, with respect to each such agreement: (A) the agreement, with respect to valid and binding on the Company or the Subsidiary, as the case may require, and, to the Company's knowledge of the Company and the Principal Stockholders' KnowledgeShareholders, all the respective other parties theretothereto and is in full force and effect, and to the to the knowledge of the Company and the Shareholders, is legalenforceable against each party thereto in accordance with its terms. Neither the Company nor any Shareholder has knowledge of any event that would constitute such a breach, validviolation or default with the lapse of time, bindinggiving of notice, enforceable, and or both under any Contract. Each Contract is in full force and effect in all respects; (B) neither and is not subject to any default, of which the Company noror any Shareholder has knowledge, by any party obligated to the Company's or Company pursuant thereto. Following 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective TimeClosing, the Company will be permitted or the Subsidiary, as the case may require, shall have the right to exercise all of the Company's its rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which that the Company or the Subsidiary would otherwise be required to paypay pursuant to the terms of such Contracts had the transaction contemplated by this Agreement not occurred. Without limiting the foregoing, upon consummation of the transactions contemplated by this Agreement, each Contract shall continue in full force and effect in accordance with its terms without penalty or other adverse consequence.
Appears in 1 contract
Agreements, Contracts and Commitments. Schedule 2.8 sets forth, as of the date of this Agreement, a true and complete list of, and the Seller Parties have made available to the Buyers true and complete copies of, the following Contracts (other than any Lease Documents, Labor Agreements or Company Benefit Plans) (collectively, the “Material Contracts”):
(a) Part 2.12(a) each Contract of any Company involving payments by or to the applicable Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company is a party or by which the Company or any of its assets is bound:
(i) of more than $100,000 in 2019 and (ii) reasonably expected to involve more than $100,000 in 2020 or any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Companyyear thereafter;
(iib) each Contract of any agreement concerning Company that contains “requirements” provisions or other similar provisions, in each case, obligating the Company to purchase or obtain a partnership minimum or joint venturespecified amount of any product or service from any Person;
(iiic) (i) all Contracts pursuant to which any agreement with Indebtedness for borrowed money of any Company Stockholder is outstanding or may be incurred and (ii) all Contracts of or by any Company guaranteeing any Indebtedness or other material financial obligations of such stockholder's affiliates any other Person (other than the applicable 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);
(xid) all Contracts pursuant to which any collective bargaining agreements;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plansCompany has agreed not to, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreementwhich, contract or commitment 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 following the Company;
(xv) 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 consummation of the transactions contemplated by this Agreement, would restrict the ability of such Company or any of its post-Closing Affiliates, to (i) compete with any Person in any business or in any geographic area, (ii) acquire the equity securities or assets of any Person, or (iii) engage in any business or other activity, including any restrictions relating to “exclusivity” or any similar requirement in favor of any Person other than the applicable Company pursuant to which any material benefit is required to be given or lost as a result of so competing or engaging;
(xvie) all Contracts to which any fidelity Company is party granting any license to, or surety bond franchise in respect of, any material right, property or completion bondother asset;
(xviif) all Contracts pursuant to which material Intellectual Property is licensed to or from any Company (excluding for the use of commercially available, off-the-shelf software);
(g) all joint venture, limited liability company, partnership or other similar Contracts (including all amendments thereto) to which any Company is a party;
(h) any lease Contract of personal property having a value individually Company that indemnifies or holds harmless any Person who is now, or was during the past two years prior to the date hereof, a director, manager or executive officer of such Company (other than pursuant to the organizational documents of such Company or applicable Law);
(i) any Contract of a Company that creates or grants a material Encumbrance on material properties (including the Real Property and any Vessel) or other material assets of any Company (other than Permitted Encumbrances);
(j) any Contract in connection with which or pursuant to which any Company shall spend or receive (or is expected to spend or receive), in the aggregate, more than $500,000 during the remaining term of such Contract (other than Lease Documents) or that is a Contract with a Governmental Entity;
(k) any Contract requiring or evidencing a capital commitment or capital expenditure (or series of capital expenditures) by any Company in excess of $25,000500,000 in the aggregate (other than Lease Documents);
(xviiil) any agreement of indemnification or guaranty;
Contract (xixA) 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;
(xx) 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 by any Company after the date of this Agreement of a material amount of assets or (B) pursuant to which any Company shall acquire after the date of this Agreement any ownership interest in any other Person or other business enterprise outside the Ordinary Course of Businessenterprise;
(xxiim) any mortgages, indentures, loans Contract (other than a Company Benefit Plan) providing for (i) any change in control or credit agreements, security agreements similar payment to be paid by a Company for which a Company would reasonably be expected to have any liability following the Closing or other agreements (ii) any material severance obligation with respect to current or instruments relating former employees of a Company for which a Company would reasonably be expected to have any liability following the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereofClosing;
(xxiiin) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxiv) Contract with respect to any distribution, joint marketing or development agreement;
(xxv) any agreement acquisition pursuant to which the any Company has granted (A) any continuing indemnification obligations or may grant in the future, (B) any potential “earn-out” or other contingent payment obligations; and
(o) any Contract that relates to any party, settlement (A) entered into with a source-code license Governmental Entity within the twelve (12) months preceding the date of this Agreement or option or other right to use or acquire source-code,;
(xxviB) any agreement pursuant to which any Company is obligated to pay consideration in excess of $100,000 or that contains any restrictions on 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 agreementbusiness activities of such Company. Each Material Contract is a legal, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has delivered to Parent a correct valid and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) binding obligation of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 party thereto and, to the Company's and knowledge of the Principal Stockholders' KnowledgeSeller Parties, all the other parties thereto, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity. No Company is legal, valid, binding, enforceable, and in full force and effect material violation of or in all respects; material default under (B) neither the Company nor, to the Company's knowledge of the Seller Parties, does there exist any condition that upon the passage of time or the Principal Stockholders' Knowledge, any other Party is in breach or default, and no event has occurred, which with giving of notice or lapse both would cause such a violation of time would constitute or default under) any Material Contract to which it is a breach party or default, by which any Company or permit termination, modification, any of its properties or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payassets is bound.
Appears in 1 contract
Sources: Equity Purchase Agreement (Twin River Worldwide Holdings, Inc.)
Agreements, Contracts and Commitments. (a) Part 2.12(aCompany Schedule 3.19 sets forth each of the following Contracts (each such Contract listed or that should be listed on Schedule 3.19, a “Material Contract”) to which any member of the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company Group is a party or by which the Company they or any of its their properties or assets is are bound:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Companycollective bargaining Contract;
(ii) any agreement concerning a partnership or joint venturethe Carena Earn Out Termination Agreement;
(iii) any agreement with any Company Stockholder or any Employment Agreement which involves base compensation in excess of such stockholder's affiliates (other than the Company) or with any affiliate of the Company$150,000;
(iv) any advertising services, e-commerce bonus 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonusincentive compensation, deferred compensation, severance, salary continuation, pension, profit sharing or retirement plansplan, or any other employee benefit plans plan or arrangementsarrangement, that is not listed on Company Schedule 3.28(a);
(xivv) any employment or consulting agreement, contract or commitment 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 CompanyCompany Group;
(xvvi) 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 AgreementAgreement or the Related Agreements;
(xvivii) any fidelity or surety bond or completion bond;
(xviiviii) any lease of tangible personal property having a value individually in excess of $25,000250,000;
(xviiiix) any agreement Contract of indemnification or guarantyguaranty to any third party (other than agreements for the sale or resale of Company Products entered into in the ordinary course of business);
(xixx) 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 personPerson, or which grants to any Person any exclusivity to any geographic territory, any customer, or any product or service;
(xxxi) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000250,000 in any individual case or $500,000 in the aggregate;
(xxixii) 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 ordinary course of Businessany member of the 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;
(xxiixiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contract relating to the borrowing of money or the extension of credit, including guaranties referred to in clause (xviii) hereofcredit or evidencing $500,000 or more of any Debt or securing such Debt;
(xxiiixiv) any unpaid or unperformed purchase order or contract other similar Contract (including for services) involving in excess of $150,000 in any individual case or $500,000 or more in the purchase of raw materials involving $10,000 or moreaggregate;
(xxivxv) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or development agreementmerchant Contract;
(xxvxvi) any agreement 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 granted advanced or may grant 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 future, to any party, a source-code license or option or other right to use or acquire source-code,ordinary course of business consistent with past practice;
(xxvixix) any agreement 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 has developed and/or delivered Group agreed to provide “most favored nation” pricing or has received funds from other similar terms and conditions to any Governmental Entity Person with respect to develop and/or deliver any Intellectual Propertymember 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
(xxviixxii) 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.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 payless.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of the Company Disclosure Letter lists the The following written or oral contracts, agreements, contracts or commitments and other arrangements with respect to which the Company Proxim or one of its subsidiaries is a party or by which is bound are referred to herein as the Company or any of its assets is bound"PROXIM CONTRACTS":
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiva) any employment or consulting agreement, contract or commitment with an any officer or director or higher level employee or individual consultant or salesperson member of Proxim's Board of Directors, other than those that are terminable by Proxim 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 CompanyProxim;
(xvb) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviiic) any agreement of indemnification or guarantyany guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business;
(xixd) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company Proxim or any of its subsidiaries to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(xxe) any agreement, contract or commitment relating to capital expenditures and involving future payments currently in excess of $25,000;
(xxi) any agreement, contract or commitment force relating to the disposition or acquisition by Proxim or any of its subsidiaries after the date of this Agreement of assets in excess of $250,000 not in the ordinary course of business or pursuant to which Proxim has any material ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Businessother than Proxim's subsidiaries;
(xxiif) any dealer, distributor, joint marketing or development agreement currently in force under which Proxim or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Proxim 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 Proxim or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Proxim product or service or any material agreement, contract or commitment currently in force to sell or distribute any Proxim products or service, including any Proxim Material IP Contract, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Western Multiplex;
(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 credit, including guaranties referred to in clause (xviii) hereof;
(xxiiii) any purchase order or contract for settlement agreement; provided that a Proxim Contract shall not include any settlement agreement entered into more than five (5) years before the purchase date 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 Propertythis Agreement; or
(xxviij) any other agreement, contract or commitment (i) in connection with or pursuant to which Proxim and its subsidiaries will spend or receive (or are expected to spend or receive), in the aggregate, more than $250,000 during the current calendar year or during the next calendar year, (ii) the termination, expiration or loss of the counterparty's performance of which could reasonably be expected to have a Material Adverse Effect on Proxim or (iii) that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement material contract (as amended to date) listed defined in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(bItem 601(b)(10) of Regulation S-K of the Company Disclosure Letter SEC rules). Neither Proxim nor any of its subsidiaries, nor to Proxim's Knowledge any other party to a Proxim Contract, is in material breach, violation or default under, and a neither Proxim nor any of its subsidiaries has received written summary setting forth notice that it has materially breached, violated or defaulted under, any of the terms and or conditions of each oral agreement referred to any Proxim Contract in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to a manner as the "Contracts"). 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 in all respects; (B) neither the Company nor, to the Company's or the Principal Stockholders' Knowledge, would permit any other Party is in breach party to cancel or default, and no event has occurred, which with notice or lapse of time would constitute a breach or defaultterminate any such Proxim Contract, or would permit termination, modification, any other party to seek material damages or acceleration, under the agreement; other remedies (C) no Party has repudiated for any provision of the agreement; and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise or all of such breaches, violations or defaults, in the Company's rights under such agreements 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 payaggregate).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Western Multiplex Corp)
Agreements, Contracts and Commitments. (a) Part 2.12(a) Item 3.17 of the Company Seller Disclosure Letter lists Schedule sets forth a complete and correct list of each existing contract, agreement or commitment of ▇▇▇-▇▇▇▇▇▇ (other than the following written or oral contracts, agreements, commitments and other arrangements to agreements described in the definition of Permitted Exceptions set forth in Section 3.13(2)):
(1) upon which the Company is a party or by which the Company or any substantial part of its assets business is bound:
(i) any agreement under which the consequences of a default dependent or termination could which, if breached, would be reasonably likely to have a Material Adverse Effect on the Company▇▇▇-▇▇▇▇▇▇;
(ii2) any agreement concerning a partnership which provides for aggregate future payments of more than $5,000, except for purchase orders 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 sale orders arising in the Ordinary Course ordinary and usual course of Business);
(xi) business, in which case they are listed only if any collective bargaining agreements;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services party thereto is obligated to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of make payments pursuant thereto aggregating more than $25,000;
(xviii3) any agreement of indemnification which extends for more than one hundred eighty (180) days from the date hereof and is not cancelable by either party on 30 days' notice or guarantyless;
(xix4) which provides for the sale after the date hereof and other than in the ordinary course of business, of any agreementof its assets;
(5) which relates to the employment compensation, contract retirement or commitment containing any covenant limiting the freedom termination of the Company services of any officer or employee or former officer or employee, including bonus, incentive, pension, profit-sharing, hospitalization, insurance, deferred compensation, retirement, stock option or stock purchase plans or similar plans providing employee benefits for or with respect to engage any officer or employee;
(6) which contains covenants pursuant to which any person or entity has agreed not to compete with the business of any other Person or not to disclose to others information concerning such other Person;
(7) which relates to the sale or other disposition of goods or services and which (i) involve terms or quantities exceeding normal commitments or in any line the ordinary course of business or (ii) contain special pricing terms or other provisions which would prohibit or limit the ability of Buyer to compete with any personeffect price increases;
(xx) 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 Business;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) 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 8) pursuant to which the Company has granted or may grant in the future, title to any party, a sourceassets of ▇▇▇-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▇▇▇▇▇▇ may be encumbered; or
(xxvii9) which relates to any partnership, joint venture or 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 delivered to Parent arrangement involving a correct and complete copy sharing of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) profits from any enterprise. Each of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement foregoing is referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to this Agreement as the a "Contracts"). 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, Material Contract." Each Material Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither and there has not occurred, with respect to any such Material Contract, any default or event of default, which, with or without due notice or with the Company norlapse of time or both, would constitute a default or event of default on the part of ▇▇▇-▇▇▇▇▇▇ or, to the Company's or the Principal Stockholders' Knowledgebest knowledge of Seller, any other Party is in breach party thereto, except where such default or default, and no event has occurred, which with notice or lapse of time default 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the CompanyMaterial Adverse Effect on ▇▇▇-▇▇▇▇▇▇. Subject to receipt Complete copies of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would each Material Contract have been able delivered 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 payBuyer.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as set forth on Schedule 2.14(a), the Company Disclosure Letter lists the following written does not have any obligations under or oral contracts, agreements, commitments and other arrangements to which the Company is a party or by which the Company or any of its assets is boundnot otherwise bound by:
(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;
(xiiii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiviii) any employment or consulting agreement, agreement or contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreementagreement or contract, contract or commitment under which any a firm or other organization provides services to the CompanyCompany of a nature which would otherwise be customarily provided under an employment or consulting relationship, pursuant to which the Company is obligated to make payments in excess of $25,000 per year;
(xv) 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;
(xviiv) any fidelity or surety bond or completion bond;
(xviiv) any lease of personal property having a value individually in excess of $25,000;
(xviiivi) any agreement of indemnification or guarantyguaranty which could result in liability to the Company in excess of $25,000, individually, other than such indemnification obligations in the Company's software license agreements entered into in the ordinary course of business consistent with past practices;
(xix) 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;
(xxvii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00025,000 individually;
(xxiviii) 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 Businessthe Company's business;
(xxiiix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereofhereof but excluding advances to employees for travel and business expenses incurred in the ordinary course of business in accordance with past practices; provided, however, that such advances do not exceed an aggregate of $25,000; and excluding extended payment terms offered to customers;
(xxiiix) any purchase order or contract for the purchase of raw materials involving $10,000 25,000 or more;
(xxivxi) any construction contract;
(xii) any material distribution, joint marketing or development agreement;
(xxvxiii) any agreement agreement, contract or commitment pursuant to which the Company has granted or may grant in the future, to any party, 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
(xxviixiv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Schedule 2.14(b) sets forth a list of the Company's top 15 customers according to recognized revenue (as determined under GAAP consistently applied) for the fiscal year ended December 31, 2000 and the six-month period ended June 30, 2001, and each customer with which the Company currently has a signed Contract that the Company in good faith expects to be one of the Company's top 15 customers for the fiscal year ending December 31, 2001, and a list of all Contracts between such customer and the Company.
(c) Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 2.14(c), the Company has delivered not breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any Contract required to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(abe set forth on Schedule 2.14(a), Part 2.11(q), Part 2.11(r), Part 2.12(aSchedule 2.14(b) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement or any Schedule referred to in such parts Schedule 2.13. Each Contract is in full force and effect and, except as otherwise disclosed in Schedule 2.14(c), is not subject to any default thereunder of which the Company Disclosure Letter (collectively, all such agreements are referred has knowledge by any party obligated to as the "Contracts")Company pursuant thereto. Except as set forth on Schedule 2.8 and except as described in Part 2.12(b) of the Company Disclosure Letter, each customer's Contract 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 in all respects; (B) neither the Company nor, to the Company's nor any subsidiary has any understandings 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment obligations of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required kind to payany customer and has not committed itself to perform any services to any customer that are not so described in such customer's Contract.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Edwards J D & Co)
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept for this Agreement and the Contracts specifically identified on Section 3.12(d) of the Company Disclosure Letter lists Schedule (with each of such Contracts specifically identified under subsection(s) of such Section 3.13 of the following written Disclosure Schedule that correspond to the Subsection or oral contractsSubsections of this Section 3.13 of the Disclosure Schedule), agreements, commitments and other arrangements to which neither the Company is a party or by which the Company or nor any of its assets is boundSubsidiaries is, as of the Agreement Date, a party to or bound by any of the following Contracts, excluding, for the avoidance of doubt, any Company Employee Plans and Employment Agreements as disclosed in Section 3.20(a) of the Disclosure Schedule:
(i) (A) any agreement under which the consequences Contract to grant any severance, change of a default control payments, retention bonus, equity acceleration, or termination could have a Material Adverse Effect on pay (in cash or otherwise) to any employee, consultant, advisor, independent contractor or director of the CompanyCompany or any Subsidiary; or (B) any Contract with any labor union or any collective bargaining agreement or similar Contract;
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xviiiii) any lease of any real property or personal property having a value individually in excess of $25,000property;
(xviiiiv) any agreement of indemnification or guaranty;
(xix) 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;
(xx) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in any amount in excess of $25,00025,000 individually or $50,000 in the aggregate, in each case in any fiscal year;
(xxiv) 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 of Business;
(xxiivi) 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 any amount in excess of $100,000 in the aggregate in any fiscal year;
(viii) any Inbound License;
(ix) any Outbound License;
(x) any Contract with a Top Supplier;
(xi) any Contract with a Top Customer;
(xii) any confidentiality and non-disclosure agreements (whether the Company is the beneficiary or the obligated party thereunder), other than any Personnel Agreements and any confidentiality and non-disclosure agreement (whether the Company is the beneficiary or the obligated party thereunder) entered into in the Ordinary Course of Business that is not material;
(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 guaranties referred those Contracts (A) that contain covenants of non-competition, rights of first refusal or negotiation, non-solicitation of customers, and exclusive dealings arrangements or (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;
(xv) any Contract with federal, state, city, county, parish, municipal or other Governmental Entities;
(xvi) (A) any management service, legal partnership or joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons and (C) any Contract that involves the payment of royalties to any other Person;
(xvii) any agency, dealer, distribution, sales representative, remarketer, reseller, or other Contract for the distribution of Company Products (other than agreements with resellers and channel partners entered into in clause 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);
(xviii) hereofany Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation basis or similar terms;
(xix) any Contract granting any license or other rights to or from the Company or any of its Subsidiaries with respect to Company Data, other than grants to service providers to use such Company Data in connection with the provision of services to the Company or any of its Subsidiaries;
(xx) any standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of the Company or any of its Subsidiaries or assets of the Company or any of its Subsidiaries or otherwise seeking to influence or exercise control over the Company or any of its Subsidiaries;
(xxi) 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;
(xxii) any agreement of indemnification with officers or directors of the Company;
(xxiii) any purchase order Contract with any investment banker, broker, advisor or contract for similar party, or any accountant, legal counsel or other Person retained by the purchase Company or any of raw materials involving $10,000 or moreits Subsidiaries, in connection with this Agreement and the transactions contemplated hereby;
(xxiv) any distributionContract or other arrangement to settle any Legal Proceeding or to settle any threatened Legal Proceeding, joint marketing in each case, that involves material outstanding obligations of the Company or development agreement;any Subsidiary of the Company; and
(xxv) any agreement other Contract or group of related Contracts with the same counter-party that have not been otherwise disclosed 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 this Section 3.13 that involves $25,000 500,000 in the aggregate or more or is not cancelable without penalty within thirty (30) daysmore, in any fiscal year.
(b) The Company has delivered to Parent a made available correct and complete copy copies of each written agreement Contract required to be disclosed pursuant to Sections 3.2, 3.10, 3.11, 3.12 (as amended to date) listed in Part 2.10(aincluding, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement), Part 2.11(q3.13 and 3.20(a). For the purposes of this Agreement, each of the foregoing Contracts referenced in this subsection 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, 3.10, 3.11, 3.12 (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement), Part 2.11(r)3.13 and 3.20(a) if such Contract had been in effect as of the Closing Date, Part 2.12(ashall each be a “Material Contract” and collectively are the “Material Contracts.”
(c) and Part 2.21(b) Each of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to its Subsidiaries has performed in such parts all material respects all of the Company Disclosure Letter (collectivelyobligations required to be performed by it and is entitled to all benefits under, all such agreements are referred and has not received any written notice alleging it to as the "Contracts")be in material default in respect of, any Material Contract. Except as set forth in Part 2.12(b) Each 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, Material Contracts is legal, valid, binding, enforceable, and in full force and effect in all respects; effect, subject only to the effect, if any, of the Enforcement Exceptions. There exists (Bx) neither no material default or material event of default under any Material Contract by the Company noror any of its Subsidiaries or, to the Knowledge of the Company's or the Principal Stockholders' Knowledge, any other Party is in breach or defaultparty thereto, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.and
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except as set forth in the Exhibits to the Company SEC Reports filed prior to the date of this Agreement or on Section 6.19 of the Company Disclosure Letter lists the following written or oral contractsSchedule, agreements, commitments and other arrangements to which neither the Company nor any of its Subsidiaries is a party to, nor are their properties or by which the Company or assets bound by, any Material Contract. For purposes of its assets is boundthis Agreement, “Material Contract” means:
(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;
(xiiii) any agreements severance, bonus or arrangements that contain any severance pay employee retention agreement, contract, plan or post-employment liabilities or obligationsbinding commitment;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiviii) any employment or consulting agreement, contract or binding commitment with an employee providing for future compensation 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;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually payments in excess of $25,00075,000 in any year not terminable by the Company or its Subsidiaries on thirty (30) days’ notice without liability, except to the extent general principles of wrongful termination or other employment law may limit the Company’s or Subsidiary’s ability to terminate Employees at will;
(xviiiiv) any agreement of indemnification or guaranty not entered into in the ordinary course of business with any party in excess of $50,000 individually or in the aggregate, and any agreement of indemnification or guaranty between the Company or its Subsidiaries and any of their officers, directors or Employees, irrespective of the amount of such agreement or guaranty;
(xixv) any agreement, contract or commitment binding commitment, with the exception of the Educational Approvals, containing any covenant directly or indirectly limiting the freedom of the Company or its Subsidiaries to engage in any line of business or to business, compete with any person, or sell any product, or which, following the consummation of the Merger, would so limit Buyer or the Surviving Company;
(xxvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000;
(xxi) any agreement, contract or binding commitment relating to the disposition or acquisition of material assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Businessenterprise;
(xxiivii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to credit (other than extensions of credit in clause (xviii) hereofthe ordinary course of business from vendors);
(xxiiiviii) any purchase order or contract for the purchase of raw materials involving $10,000 or moreLeases;
(xxivix) any distributionother than in connection with the Merger and other transactions contemplated by this Agreement, 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 binding commitment that which involves payment by the Company or its Subsidiaries of $25,000 75,000 or more or is in the aggregate which cannot cancelable without penalty within be terminated on thirty (30) days.’ notice without cost or expense to the Company or its Subsidiaries;
(bx) any agreement, contract or binding commitment defining the rights of the security (debt or equity) holders of the Company or any of its Subsidiaries;
(xi) any agreement, contract or binding commitment to which the Company or any of its Subsidiaries is a party or to which it is bound relating to the voting of any shares of the capital stock of the Company, or the capital stock or other securities of any of its Subsidiaries;
(xii) any agreement, contract or binding commitment to register the Company’s securities; or
(xiii) any other agreements, contracts or binding commitments which are material to the Company or any of its Subsidiaries or the operation of their respective businesses. The Company has delivered provided or made available to Parent a Buyer true and correct and complete copy copies of each written agreement (all Material Contracts as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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.
Appears in 1 contract
Agreements, Contracts and Commitments. 3.18.1. COMPANY AGREEMENTS. Except as set forth on SCHEDULE 3.18 hereto, the Company is not a party to:
(a) Part 2.12(aany employment agreement with any present employee, officer, director or consultant (or former employees, officers, directors and consultants to the extent there remain at the date hereof obligations to be performed by the Company);
(b) any agreement for personal services or employment with a term of service or employment specified in the agreement in which the Company has agreed on the termination of such agreement to make any payments greater than those that would otherwise be imposed by law;
(c) any agreement of guarantee of the obligations of others;
(d) any agreement or commitment containing a covenant limiting or purporting to limit the freedom of the Company Disclosure Letter lists to compete with any person in any geographic area or to engage in any line of business;
(e) any joint venture or profit-sharing agreement;
(f) except for trade indebtedness incurred in the following written ordinary course of business and reflected on the February Balance Sheet, any loan or oral contracts, agreements, commitments and other arrangements credit agreements providing for the extension of credit to which the Company is a party or by which the Company or any instrument evidencing or related in any way to indebtedness incurred in the acquisition of its assets companies or other entities or indebtedness for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, lease, guarantee, or otherwise that individually is bound:in the amount of $25,000 or more;
(g) any license or royalty agreement (other than (A) those disclosed on SCHEDULE 3.17, (B) with respect to Commercial Software or (C) End-User Licenses granted by the Company as licensor);
(h) any distribution, VAR or OEM agreement (identifying any that contain exclusivity provisions);
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on arrangement with any third party to develop any intellectual property or other asset expected to be used or currently used or useful in the Company's business;
(iij) any agreement concerning a partnership or joint venturearrangement for the Company to develop any intellectual property or other asset for any third party;
(iiik) any agreement with or arrangement providing for the payment of any Company Stockholder or any of such stockholder's affiliates (other than the Company) or with any affiliate of the Companycommission based on sales;
(ivl) any advertising servicesagreement for the sale or license by or to the Company of materials, e-commerce products, services or other agreement involving supplies that involves future payments to the promotion Company of products and services of third parties by the Companymore than $25,000;
(vm) 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 purchase 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonusmaterials, deferred compensationequipment, pension, profit sharing or retirement plansservices, or any other employee benefit plans or arrangements;
supplies, that either (xivi) any employment or consulting agreement, contract or involves a binding commitment 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;
(xv) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xx) any agreement, contract or commitment relating to capital expenditures and involving make future payments in excess of $25,000 and cannot be terminated by it without penalty upon less than three months' notice or (ii) was not entered into in the ordinary course of business;
(n) any agreement or commitment for the acquisition, construction or sale of fixed assets owned or to be owned by the Company that involves future payments by it of more than $25,000;
(xxio) any agreement, contract agreement or commitment relating to the disposition which present or acquisition former directors or officers (or their Affiliates or members of assets their immediate families) or any interest in any business enterprise outside the Ordinary Course Affiliates (or directors or officers of Businessan Affiliate) are also parties;
(xxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxiv) any distribution, joint marketing or development agreement;
(xxvp) any agreement pursuant to which not described above (ignoring, solely for this purpose, any dollar amount thresholds in those descriptions) involving the payment or receipt by the Company has granted or may grant in the futureof more than $25,000, to any party, a source-code license or option or other right to use or acquire source-code,;
(xxvi) any agreement pursuant to which than the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual PropertyLeases; or
(xxviiq) any other agreement, contract or commitment agreement not described above that involves $25,000 or more or was not made in the ordinary course of business and that is not cancelable without penalty within thirty (30) days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 material to the Company andfinancial condition, to the Company's and the Principal Stockholders' Knowledgebusiness, all other parties theretooperations, is legalassets, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company nor, to the Company's results of operations 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all prospects of the Company's rights under such agreements 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.
Appears in 1 contract
Sources: Merger Agreement (Allaire Corp)
Agreements, Contracts and Commitments. (a) Part Except as set forth on Schedule 2.12(a) of ), the Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;collective bargaining agreements,
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;obligations other than as required by statute, which are described on Schedule 2.12(a)
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(xiviv) any employment or consulting agreement, contract or commitment 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 Company;organization,
(xvv) 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;,
(xvivi) any fidelity or surety bond or completion bond;,
(xviivii) any lease of personal property having a value individually in excess of $25,000;150,000,
(xviiiviii) any agreement of indemnification or guaranty;, other than indemnification granted to third party licensees of the Company in the ordinary course of business except with respect to consequential damages,
(xixix) 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;,
(xxx) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000;150,000,
(xxixi) 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 ordinary course of Business;the Company's business,
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviiiviii) hereof;,
(xxiiixiii) any purchase order for raw materials or contract for the purchase of raw materials involving $10,000 50,000 or more;,
(xxivxiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement;,
(xxvxvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, 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
(xxviixvii) any other agreement, contract or commitment agreement that involves $25,000 250,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except for such alleged material breaches, violations and defaults and events that would constitute a material breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has delivered 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 Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part be set forth on Schedule 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and or Schedule 2.11 (any such agreement, contract or commitment, a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "ContractsContract"). 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, Each Contract is legal, valid, binding, enforceable, and in full force and effect and, except as otherwise disclosed in all respects; (B) neither the Company norSchedule 2.12(b), is not subject 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 default thereunder 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 has knowledge by any party obligated to paythe Company pursuant thereto.
(c) Schedule 2.12
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Critical Path Inc)
Agreements, Contracts and Commitments. (a) Part 2.12(a) of Except as set forth on Company Schedule 2.16(a), the Company Disclosure Letter lists the following written or oral contractsdoes not have, agreements, commitments and other arrangements to which the Company is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xvii) 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any lease of personal property having a value individually in excess of USD $25,00025,000 individually or USD $50,000 in the aggregate;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xxv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of USD $25,00025,000 individually or USD $50,000 in the aggregate;
(xxivi) 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 Businessthe Company's business;
(xxiivii) any mortgages, indentures, loans or credit agreements, security agreements licensing agreement or other agreements or instruments relating contract with respect to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereofIntellectual Property Rights;
(xxiiiviii) any purchase order joint venture, partnership, and other contract involving a sharing of profits, losses, costs, or contract for liabilities by the purchase of raw materials involving $10,000 or moreCompany with any third party;
(xxivix) any distribution, joint marketing contract containing covenants that in any way purport to restrict the business activity of the Company or development agreementany 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;
(xxvx) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option power of attorney or other right to use similar agreement or acquire source-code,grant of agency;
(xxvixi) any agreement pursuant to which contract entered into other than in the ordinary course of business that contains or provides for an express undertaking by the Company has developed and/or delivered to be responsible for consequential damages;
(xii) any oral or has received funds from any Governmental Entity written warranty, guaranty, and or other similar undertaking with respect to develop and/or deliver any Intellectual Propertyproduct or contractual performance sold or extended by the Company other than in the ordinary course of business; or
(xxviixiii) any other agreementamendment, 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 delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) All of the Contracts set forth or required to be set forth on Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter Schedule 2.16(a) (collectively, all such agreements are referred to as the "Contracts"). Except as set forth ) are valid, binding and enforceable in Part 2.12(b) accordance with their respective terms, subject to laws of the Company Disclosure Lettergeneral application relating to bankruptcy, with respect to each such agreement: (A) the agreement, with respect to the Company and, to the Company's insolvency and the Principal Stockholdersrelief of debtors and other laws of general application effecting enforcement of creditors' Knowledgerights generally, all rules of law governing specific performance, injunctive relief or other parties thereto, is legal, valid, binding, enforceableequitable remedies, and limitations of public policy; 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 respects; (B) neither the Company nor, material obligations required to the Company's be performed by it and is not in default in any material respect under or the Principal Stockholders' Knowledge, any other Party is in breach in any material respect of nor in receipt of any claim of default or default, and breach under any Contract set forth or required to be set forth on Company Schedule 2.16(a); no event has occurredoccurred which, which with the passage of time or the giving of notice or lapse of time both, would constitute result in a default, breach or default, or permit termination, modification, or acceleration, event of noncompliance by the Company in any material respect under the agreementany such Contract; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have any reason present expectation or intention of not fully performing on a timely basis all such obligations required to believe that be performed by the service called for thereunder cannot Company under any Contract set forth or required to be set forth on Company Schedule 2.16(a); no partially-filled or unfilled material
(c) Parent has been supplied in accordance with its terms a true and without resulting in a loss to the Company. Subject to receipt correct copy of each of the consents written Contracts that are set forth in Part 6.3(c) of the on Company Disclosure LetterSchedule 2.16(a), following the Effective Timetogether with all amendments, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment of any additional amounts waivers or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to paychanges thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) As of the Company Disclosure Letter lists the following written or oral contractsdate hereof, agreements, commitments and other arrangements to which neither the Company nor any of its Subsidiaries is a party to, nor are they bound by:
(i) any 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 by which similar payments or (B) agreements between the Company or any of its assets is bound:
ERISA Affiliates and any consultant or contractor relating to the performance of services for the Company or any of its ERISA Affiliates (i) any agreement under in either case, the forms of which the consequences of a default or termination could have a Material Adverse Effect on the Companypreviously been provided to Parent);
(ii) any agreement concerning a partnership or joint venture;
plan (iii) any agreement with including 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) any agreement or plan, including, without limitation, any stock option planOption 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;
(xvi) any fidelity or surety bond or completion bond;
(xviiiii) any lease of personal property having a value individually providing for payments in excess of $25,00025,000 individually or $100,000 in the aggregate;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xxiv) any agreement, contract or commitment relating to capital expenditures and involving future payments after the date hereof in excess of $25,00025,000 individually or $100,000 in the aggregate;
(xxiv) 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 Businessthe Company’s business;
(xxiivi) 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 credit, including guaranties referred to in clause (xviii) hereofcredit or security interest;
(xxiiivii) any pending purchase order or contract for the purchase of raw materials involving in excess of $10,000 or more100,000;
(xxivviii) any distributionpowers of attorney, 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 marketing venture, strategic alliance or development similar agreement;
(xxvxi) any agreement pursuant material Contract to which an Interested Party is a party, other than Contracts relating to the acquisition of equity securities of the Company has granted or may grant in relating to an Interested Party’s employment or service relationship with the future, to any party, a source-code license or option or other right to use or acquire source-code,Company;
(xxvixii) any dealer, distribution, joint marketing, development agreement, sales representative, original equipment manufacturer, value added, remarketer, reseller, or independent software vendor, or other agreement pursuant for marketing, sales, provision or distribution of the Company’s products, technology or services and that is material to which the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual PropertyCompany’s business; or
(xxviixiii) any other agreementContract, contract including any service, operating or commitment 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 delivered and its Subsidiaries are in compliance in all material respects with, and have not received notice prior to Parent a correct and complete copy the date of each written agreement (as amended this Agreement that they have breached, violated or defaulted under any of, the terms or conditions of any Contract required to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(bbe set forth on Section 3.14(a) of the Company Disclosure Letter and Schedule, nor has there occurred any event or condition that could reasonably be expected to constitute such a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of breach, violation or default by the Company Disclosure Letter (collectivelyor its Subsidiaries with the lapse of time, all such agreements are referred giving of notice or both. Each Contract required to as the "Contracts"). Except as be set forth in Part 2.12(bon Section 3.14(a) of the Company Disclosure Letter, with respect to each such agreement: Schedule is in full force and effect (A) the agreement, with respect except to the Company extent that such Contracts are terminated in a manner permitted under Section 5.1(b)(iii)) and, to the Company's and the Principal Stockholders' ’s Knowledge, all other parties thereto, is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither no third party obligated to the Company noror any of its Subsidiaries pursuant to any such Contract is subject to any default thereunder.
(c) The Company has delivered to Parent true, to the Company's or the Principal Stockholders' Knowledge, any other Party is correct and complete copies of all Contracts listed 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(cSection 3.14(a) of the Company Disclosure LetterSchedule, following the Effective Timeincluding all amendments, the Company will be permitted to exercise all of the Company's rights under such supplements, exhibits and ancillary agreements 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 paythereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(aExcept as set forth in Section 3.15 and Section 3.2(b) of the Company SurePure US Disclosure Letter lists the following written or oral contractsLetter, agreements, commitments and other arrangements to which the Company SurePure US is neither a party or by which the Company or any of its assets to nor is boundbound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiva) any employment or consulting agreement, contract or commitment with an any officer or director level employee or individual consultant member of SurePure US’s Board of Directors, other than those that are terminable by SurePure US on no more than thirty days notice without liability or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Companyfinancial obligation;
(xvb) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviiic) any agreement of indemnification or guarantyguaranty not entered into in the ordinary course of business other than indemnification agreements between SurePure US and any of its officers or directors;
(xixd) any agreement, contract or commitment containing any covenant limiting the freedom of the Company SurePure US to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(xxe) any agreement, contract or commitment relating to capital expenditures and involving future payments currently in excess of $25,000;
(xxi) any agreement, contract or commitment force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Business;enterprise; or
(xxiif) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiii) any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xxiv) any distribution, material joint marketing or development agreement;
. SurePure US, nor to SurePure US’s knowledge any other party to a SurePure US Contract (xxv) as defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any agreement pursuant of the material terms or conditions of any of the agreements, contracts or commitments to which SurePure US is a party or by which it is bound of the Company has granted or may grant type described in the future, to clauses (a) through (f) above (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 such agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30commitment, a “SurePure US Contract”) days.
(b) The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to a manner as the "Contracts"). 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 in all respects; (B) neither the Company nor, to the Company's or the Principal Stockholders' Knowledge, would permit any other Party is in breach party to cancel or defaultterminate any such SurePure US Contract, and no event has occurredor would permit any other party to seek damages, 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 does not have any reason be reasonably likely to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss material to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all of the Company's rights under such agreements 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 paySurePure US.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except as set forth in Section 2.20 of the Company Disclosure Letter lists the following written or oral contractsSchedule, agreements, commitments and other arrangements to which the neither Company nor any of its subsidiaries is a party to or by which the Company or any of its assets is boundbound by:
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiva) any employment or consulting agreement, contract or commitment with any officer, director, Company employee currently earning an employee annual salary in excess of $100,000 or individual consultant or salesperson member of Company's Board of Directors, other than those that are terminable by Company 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;
(xvb) 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;
(xvi) any fidelity or surety bond or completion bond;
(xvii) any lease of personal property having a value individually in excess of $25,000;
(xviiic) any agreement of indemnification or guarantyany guaranty other than any agreement of indemnification or warranty entered into in the ordinary course of business in connection with the sale of products or the provision of services;
(xixd) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company or any of its subsidiaries to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(xxe) any agreement, contract or commitment relating to capital expenditures and involving future payments currently in excess of $25,000;
(xxi) any agreement, contract or commitment force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise outside the Ordinary Course of Businessother than Company's subsidiaries;
(xxiif) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiig) any purchase order or contract for material settlement agreement entered into within five (5) years prior to the purchase date 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 Propertythis Agreement; or
(xxviih) any other agreement, contract or commitment that involves has a value of $25,000 500,000 or more individually or is not cancelable without penalty within thirty (30) days.
(b) The Company has delivered which relates to Parent a correct and complete copy one of each written agreement (as amended to date) Company's customers listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(bon Schedule 2.20(h) of the Company Disclosure Letter and Schedule which sets forth a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all list of the Company's rights under such agreements top twenty customers by revenue for fiscal year end 1999. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the same extent material terms or conditions of any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule (any such agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would have been able permit any other party to had cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in 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 payaggregate).
Appears in 1 contract
Sources: Merger Agreement (Appnet Inc /De/)
Agreements, Contracts and Commitments. (a) Part 2.12(a) As of the Company Disclosure Letter lists the following written or oral contractsdate hereof, agreements, commitments and other arrangements to which neither the Company nor any of its Subsidiaries is a party to, nor are they bound by:
(i) any 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 by which similar payments or (B) agreements between the Company or any of its assets is bound:
ERISA Affiliates and any consultant or contractor relating to the performance of services for the Company or any of its ERISA Affiliates (i) any agreement under in either case, the forms of which the consequences of a default or termination could have a Material Adverse Effect on the Companypreviously been provided to Parent);
(ii) any agreement concerning a partnership or joint venture;
plan (iii) any agreement with including 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) any agreement or plan, including, without limitation, any stock option planOption 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;
(xvi) any fidelity or surety bond or completion bond;
(xviiiii) any lease of personal property having a value individually providing for payments in excess of $25,00025,000 individually or $100,000 in the aggregate;
(xviii) any agreement of indemnification or guaranty;
(xix) 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;
(xxiv) any agreement, contract or commitment relating to capital expenditures and involving future payments after the date hereof in excess of $25,00025,000 individually or $100,000 in the aggregate;
(xxiv) 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 Businessthe Company’s business;
(xxiivi) 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 credit, including guaranties referred to in clause (xviii) hereofcredit or security interest;
(xxiiivii) any pending purchase order or contract for the purchase of raw materials involving in excess of $10,000 25,000 individually or more$100,000 in the aggregate;
(xxivviii) any distributionpowers of attorney;
(ix) any agreement containing any price protection, “most favored nation” or similar provisions;
(x) any partnership, joint marketing venture, strategic alliance or development similar agreement;
(xxvxi) any agreement pursuant material Contract to which an Interested Party is a party, other than Contracts relating to the acquisition of equity securities of the Company has granted or may grant in relating to an Interested Party’s employment or service relationship with the future, to any party, a source-code license or option or other right to use or acquire source-code,Company;
(xxvixii) any dealer, distribution, joint marketing, development agreement, sales representative, original equipment manufacturer, value added, remarketer, reseller, or independent software vendor, or other agreement pursuant for marketing, sales, provision or distribution of the Company’s products, technology or services and that is material to which the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual PropertyCompany’s business; or
(xxviixiii) any other agreementContract, contract including any service, operating or commitment 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 delivered and its Subsidiaries are in compliance in all material respects with, and have not received notice prior to Parent a correct and complete copy the date of each written agreement (as amended this Agreement that they have breached, violated or defaulted under any of, the terms or conditions of any Contract required to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(bbe set forth on Section 3.14(a) of the Company Disclosure Letter and Schedule, nor has there occurred any event or condition that could reasonably be expected to constitute such a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of breach, violation or default by the Company Disclosure Letter (collectivelyor its Subsidiaries with the lapse of time, all such agreements are referred giving of notice or both. Each Contract required to as the "Contracts"). Except as be set forth in Part 2.12(bon Section 3.14(a) of the Company Disclosure Letter, with respect to each such agreement: Schedule is in full force and effect (A) the agreement, with respect except to the Company extent that such Contracts are terminated in a manner permitted under Section 5.1(b)(iii)) and, to the Company's and the Principal Stockholders' ’s Knowledge, all other parties thereto, is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither no third party obligated to the Company noror any of its Subsidiaries pursuant to any such Contract is subject to any default thereunder.
(c) The Company has delivered to Parent true, to the Company's or the Principal Stockholders' Knowledge, any other Party is correct and complete copies of all Contracts listed 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 does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(cSection 3.14(a) of the Company Disclosure LetterSchedule, following the Effective Timeincluding all amendments, the Company will be permitted to exercise all of the Company's rights under such supplements, exhibits and ancillary agreements 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 paythereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Part Section 2.12(a) of the Company Disclosure Letter lists Schedule sets forth all contracts (x) that are material to the following written business or oral contractsoperations of the Company, agreements, commitments and other arrangements (y) which by their terms seek to limit or define those activities in which the Company is (or the Surviving Entity would be) permitted or required to engage or (z) which involve amounts in excess of $10,000 or which are otherwise material to the business or operations of the Company and which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party or by which the Company or any of its assets to nor is boundit bound by:
(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;
(xiiii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiiiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiviv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to (other than offer letters for at-will employment in the Company’s standard form that do not contain any unfulfilled obligations relating to severance, bonus or option grants);
(xvv) 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 Agreementhereby or thereby;
(xvivi) any fidelity or surety bond or completion bond;
(xviivii) any lease of real or personal property having a value individually involving future payments in excess of $25,000;
(xviiiviii) any agreement of indemnification, reimbursement, guaranty, suretyship or other obligation to assume or incur any obligation of a third party involving amounts in excess of $10,000 individually or $50,000 in the aggregate (other than indemnification or guarantyobligations pursuant to the Company’s online click-through standard form agreement);
(xixix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xxx) any agreement, contract or commitment relating to future capital expenditures and or involving future payments in excess of $25,000;
(xxixi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets assets, properties or any interest in any business enterprise enterprise, in each case outside of the Ordinary Course ordinary course of Businessthe Company’s business;
(xxiixii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in clause subparagraph (xviiivi) hereofabove;
(xxiiixiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 25,000 or more, other than purchases in the ordinary course of business;
(xxivxiv) any construction contracts involving amounts in excess of $10,000 individually or $50,000 in the aggregate;
(xv) any distribution, joint marketing marketing, licensing or development agreementagreement involving amounts in excess of $10,000 individually or $50,000 in the aggregate;
(xxvxvi) 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,insurance policies;
(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
(xxviixvii) any other agreement, contract or commitment that involves or could result in aggregate payments to or by the Company of $25,000 50,000 or more or is not cancelable by the Company without penalty within thirty ninety-one (3091) days.
(b) The Company has delivered not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to Parent which it is a correct and complete copy of each written agreement party or by which it or its assets or properties are or may be bound (as amended to date) listed in Part 2.10(aany such agreement, contract or commitment, a “Contract”), Part 2.11(q)except for such breaches, Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to violations or defaults as would not result in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 liability to the Company and, to in excess of $25,000 individually or $50,000 in the Company's and the Principal Stockholders' Knowledge, all other parties thereto, aggregate. Each Contract is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither and is not subject to any breach, default or violation thereunder of which the Company nor, has Knowledge by any party obligated to the Company's or the Principal Stockholders' Knowledge, any other Party is in breach or default, and no event Company pursuant thereto. The Company has occurred, which with notice or lapse of time would constitute a breach or defaultobtained, or permit termination, modification, or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have any reason will obtain prior to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, all necessary consents, waivers and approvals of parties to any Contract (including the Company will be permitted Material Contracts) as are required or prudent to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had obtain in connection with the Merger not occurred and without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which transactions contemplated hereby and by the Company would otherwise be required to payAncillary Agreements (the “Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (Valueclick Inc/Ca)
Agreements, Contracts and Commitments. (a) Part 2.12(a) Except as set forth on Schedule 4.16, the Company does not have, and is not a party to or is not bound by any of the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company is a party or by which the Company or any of its assets is boundContracts:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Companycollective bargaining agreement;
(ii) any agreement concerning a partnership employment or joint ventureconsulting Contract commitment with any Employee, contractor, consultant, advisor or member of the Company’s board of directors;
(iii) any agreement with any Company Stockholder bonus or any of such stockholder's affiliates (other than the Company) incentive compensation, deferred compensation, severance, salary continuation, pension, profit sharing or with retirement plan, or any affiliate of the Companyother employee benefit plan or arrangement, that is not listed on Schedule 4.24(a);
(iv) any advertising servicescommission and/or sales agreement with an Employee, e-commerce individual consultant or salesperson, or under which a firm or other agreement involving the promotion of products and organization provides commission or sales-based services of third parties by to the Company, that is not listed on Schedule 4.25(b) or 4.26(c);
(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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company;
(xv) 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 AgreementAgreement or the Related Agreements;
(xvivi) any fidelity or surety bond or completion bond;
(xviivii) any lease of personal property having a value individually in excess of $25,00025,000 per annum;
(xviiiviii) any agreement Contract of indemnification or guarantyguaranty to any third party other than pursuant to the Standard Support Agreement;
(xixix) any agreement, contract or commitment Contract containing any covenant limiting the freedom of the Company to engage in any line of business or in any geographic territory or to compete with any personPerson, or which grants to any Person any exclusivity to any geographic territory, any customer, or any Customer Product or Service;
(xxx) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,00025,000 per annum in any individual case or $50,000 per annum in the aggregate;
(xxixi) 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 ordinary course of Businessthe Company’s business or any agreement relating to the acquisition of assets or any interest in any business enterprise;
(xxiixii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contract relating to the borrowing of money or the extension of credit, including guaranties referred to in clause (xviii) hereofcredit or evidencing any Debt;
(xxiiixiii) other than the Standard Support Agreements, any purchase order or contract 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 purchase of raw materials involving $10,000 or moreaggregate;
(xxivxiv) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or development agreementmerchant Contract involving amounts in excess of $25,000 per annum in any individual case or $50,000 per annum or more in the aggregate;
(xxvxv) any agreement Contract pursuant to which the Company has granted or may be obligated to grant in the future, to any partyPerson, a source-code license or option or other right to use or acquire source-source code,, including any Contract that provide for source code escrow arrangements;
(xxvixvi) any sales representative, original equipment manufacturer, value added re-seller, re-marketer or other agreement for distribution of the Company’s Products or Services, or the products or services of any other Person;
(xvii) any agreement pursuant to which the Company has developed and/or delivered advanced or has received funds from loaned any Governmental Entity amount to develop and/or 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 Intellectual Propertyproduct 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
(xxviixxi) other than the Standard Support Agreements, any other agreement, contract or commitment Contract that involves $25,000 per annum or more or is not cancelable without penalty within thirty upon sixty (3060) days.
(b) The Company has delivered days notice or less. Each Contract required to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). Except as be 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, on Schedule 4.16 is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) neither the Company norand is valid, to the Company's or the Principal Stockholders' Knowledge, any other Party is in breach or default, binding 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 does not have any reason to believe that the service called for thereunder cannot be supplied enforceable in accordance with its terms and without resulting the Company is not in a loss default thereunder, nor to the Company. Subject to receipt knowledge of the consents set forth Seller Parties is any party obligated to the Company pursuant to any such Contract in Part 6.3(c) default thereunder. The Company is in compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the Company Disclosure Letterterms or conditions of any Contract, following nor does the Effective Timeany Seller Party have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and 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 payboth).
Appears in 1 contract
Sources: Stock Purchase Agreement (Descartes Systems Group Inc)
Agreements, Contracts and Commitments. (a) Part 2.12(a) The Purchased Assets are not subject to any of the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company is a party or by which the Company or any of its assets is boundfollowing:
(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 servicesemployment, 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment independent contractor or consulting agreement, contract Contract or commitment with an employee or employee, independent contractor, individual consultant or salesperson (in all cases in other than Seller IP’s or Seller R&D’s standard form), or any consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xv) 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;
(xviii) any fidelity or surety bond or completion bond;
(xviiiii) any lease of personal property having a value individually in excess of $25,000property;
(xviiiiv) any agreement of indemnification or guaranty;
(xixv) any agreement, contract Contract involving future payments or commitment containing any covenant limiting that requires the freedom payment of the Company to engage in any line of business or to compete with any personroyalties;
(xxvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000;
(xxi) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets (tangible or intangible) or properties, or any interest in any business enterprise outside the Ordinary Course of BusinessPerson;
(xxiivii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or money, the extension of credit, including guaranties referred to in clause (xviii) hereofcredit or the continuing or future grant of any Lien;
(xxiiiviii) any outstanding purchase order or contract Contract for the purchase of raw materials or services involving in excess of $10,000 individually or more$50,000 in the aggregate;
(xxivix) any Contract 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;
(x) any dealer, distribution, marketing, development or joint marketing or development venture agreement;
(xxvxi) any agreement pursuant to which the Company has granted sales representative, original equipment manufacturer, manufacturing, value added, marketing, remarketer, reseller, or may grant in the futureindependent software vendor, to any party, a source-code license or option distribution or other right to use or acquire source-code,agreement;
(xxvixii) any agreement pursuant Contract with any customer of Seller IP, Seller R&D or the Business;
(xiii) any Contract between or among Seller IP or Seller R&D, on the one hand, and any Seller (other than Seller IP or Seller R&D), on the other hand;
(xiv) any agreement, Contract or commitment that obligates Seller IP, Seller R&D or the Business to which provide future deliverables to any Person including, without limitation, licenses to Transferred IP or the Company has developed and/or delivered performance of services;
(xv) any Contract that restricts or has received funds prohibits Seller IP or Seller R&D from hiring or soliciting for hire any Governmental Entity individual to develop and/or deliver any Intellectual Propertyperform employment or consulting services for Seller IP, Seller R&D or the Business; or
(xxviixvi) any other agreement, contract or commitment Contract that involves $25,000 or more or is does not cancelable without penalty within thirty (30) dayshave a limitation to liability arising from direct damages.
(b) The Company has delivered to Parent Each Assumed Contract is a correct valid and complete copy of binding agreement, enforceable against each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such parts of the Company Disclosure Letter (collectively, all such agreements are referred to as the "Contracts"). 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 in all respects; (B) neither the Company nor, 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 does not have any reason to believe that the service called for thereunder cannot be supplied thereto in accordance with its terms and without resulting is in a loss full force and effect, and each Assumed Contract will continue to be in full force and effect following the Closing. Each Seller 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 such Contract, nor to the CompanyKnowledge of Seller Parties, is any party obligated pursuant to any such Contract subject to any breach, violation or default thereunder, nor does any Seller Party have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default. Subject True and complete copies of each Assumed Contract have been Made Available to receipt of the consents set forth in Part 6.3(cBuyer Parties.
(c) Section 2.11(c) of the Company Disclosure LetterSchedule sets forth all necessary consents, following waivers and approvals of parties to any Assumed Contracts as are required thereunder in connection with the Effective Time, Acquisition Transactions or the Company will be permitted to exercise all of the Company's rights under such agreements to the same extent the Company would have been able to had the Merger not occurred and without the payment of other transactions contemplated by this Agreement or any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to payRelated Agreement.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as set forth in Section 3.18 of the Disclosure Letter (specifying the appropriate paragraph):
(a) Part 2.12(a) Neither Company nor any of the Company Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to which the Company its Subsidiaries is a party to, or by which the Company or any of its assets is boundit bound by:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;
any: (ii1) 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 servicesemployment, 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;
(xii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(xiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(xiv) any employment contractor or consulting agreement, contract or commitment with an employee Employee or individual consultant consultant, contractor, or salesperson not in the Company’s standard form; (2) any agreement, contract or commitment to grant any bonus, severance, change in control or termination pay (in cash or otherwise) to any Employee; or (3) any contractor, consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to the Companyorganization;
(xvii) 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 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;
(xviiii) any fidelity or surety bond or completion bond;
(xviiiv) any collective bargaining, union or works council agreements;
(v) any lease of personal property having a value individually in excess of $25,000CDN$25,000 individually or CDN$50,000 in the aggregate;
(xviiivi) any agreement Contract, other than Company Standard Outbound Licenses, that provides for surety, guaranty or indemnification obligations of indemnification the Company or guarantyany of its Subsidiaries, which obligations are not capped to a maximum amount of liability equal to the greater of CDN$100,000 or the total amounts paid under the Contract;
(xixvii) 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;
(xx) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000CDN$25,000 individually or CDN$50,000 in the aggregate;
(xxiviii) 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 ordinary course of Businessthe Company’s business (which includes the business of any and all Subsidiaries);
(xxiiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (xviii) hereof;
(xxiiix) any purchase order or contract Contract for the purchase of raw materials involving $10,000 in excess of CDN$25,000 individually or moreCDN$50,000 in the aggregate;
(xxivxi) any distribution, joint marketing or development agreementconstruction contracts;
(xxvxii) any agreement joint marketing, affiliate, joint venture, partnership, strategic alliance or development Contract;
(xiii) any Contract to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xiv) any Contract pursuant to which the Company or any of its Subsidiaries has granted undertaken to, 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 receipt of revenue is contingent upon, the delivery of products or service offerings not in commercial existence as of the date hereof, and specifically not contingent upon the release of any new product or new version of an existing product;
(xv) any dealer, distribution, sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other Contract for use or distribution of the products, services or other Technology of the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Propertyof its Subsidiaries; or
(xxviixvi) any other agreementContract, contract including any service, operating or commitment management agreement or arrangement with respect to any of the Leased Real Property, that involves $25,000 CDN$25,000 individually or CDN$50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) The Each Contract to which the Company has delivered to Parent or any of its Subsidiaries is a correct party or any of its properties or assets (whether tangible or intangible) is subject is a valid and complete copy of each written binding agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions or any of its Subsidiaries, as applicable, enforceable against each oral agreement referred to in such parts of the Company Disclosure Letter (collectivelyparties thereto in accordance with its terms, all such agreements are referred to as the "Contracts"). Except as set forth and is in Part 2.12(b) of the Company Disclosure Letterfull force and effect, with respect to each such agreement: (A) the agreementunamended, with respect to the Company or any of its Subsidiaries, as applicable, 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 in all respects; (B) neither Knowledge of the Company nor, to the Company's or the Principal Stockholders' Knowledgeand/or any of its Subsidiaries, any other Party party thereto. The Company and each of its Subsidiaries is in breach or defaultmaterial compliance with, and no event has occurrednot materially breached, which with violated or defaulted under, or received 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 does not have any reason to believe that a customer may assert that it has materially breached, violated or defaulted under, any of the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss or conditions of any such Contract, nor to the Company. Subject to receipt of the consents set forth in Part 6.3(c) Knowledge of the Company and/or any of its Subsidiaries is any party obligated to the Company and/or any of its Subsidiaries pursuant to any such Contract subject to any breach, violation or default thereunder, nor does the Company and/or any of its Subsidiaries have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company or any of its Subsidiaries or any such other party. True and complete copies of each Contract disclosed in the Disclosure LetterLetter or required to be disclosed pursuant to this Section 3.18 (each a “Material Contract” and collectively, following the Effective Time“Material Contracts”) have been delivered to Parent.
(c) The Company and each of its Subsidiaries has fulfilled all material obligations required pursuant to each Contract to have been performed by the Company or any of its Subsidiaries prior to the date hereof, and, without giving effect to the Arrangement, the Company and each of its Subsidiaries will be permitted to exercise fulfill, when due, all of its obligations under the Company's rights under such agreements Material Contracts that remain to be performed after the same extent date hereof.
(d) All outstanding indebtedness of the Company would have been able to had the Merger not occurred and without the payment or any of any additional amounts or consideration its Subsidiaries, other than ongoing fees, royalties or payments which indebtedness owing under the Company would otherwise Convertible Debentures, may be required to payprepaid without penalty.
Appears in 1 contract
Sources: Acquisition Agreement (Taleo Corp)