Agreements, Contracts and Commitments. (a) Set forth in Schedule 2.13(a) is a list of all agreements, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the following: (i) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, (ii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, (iii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, (iv) any fidelity or surety bond or completion bond, (v) any lease of personal property, (vi) any agreement of indemnification or guaranty, (vii) 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, (viii) any agreement, contract or commitment relating to capital expenditures, (ix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s business, (x) 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 (vi) hereof, (xi) any purchase order or contract for the purchase of raw materials, (xii) any construction contracts, (xiii) any distribution, joint marketing or development agreement, or (xiv) any other agreement, contract or commitment that is not cancelable without penalty within thirty (30) days. (b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company Contract. Each Company Contract is in full force and effect and is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated to the Company pursuant thereto. (c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby. (d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurred.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Monaco Coach Corp /De/), Stock Purchase Agreement (Monaco Coach Corp /De/), Stock Purchase Agreement (Monaco Coach Corp /De/)
Agreements, Contracts and Commitments. Except as set forth in Section 3.12 of the Disclosure Schedule, neither the Corporation nor any of its Subsidiaries has continuing obligations under, is not a party to nor is it bound by:
(a) Set forth in Schedule 2.13(a) is a list of all any collective bargaining agreements, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, ;
(b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the following:
(i) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iiid) any employment employment, sales or consulting agreement, contract or commitment with an employee or employee, individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,;
(ive) 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 the Transaction Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by the Transaction Agreements, except as provided herein;
(f) any fidelity or surety bond or completion bond,;
(vg) any lease of personal property,property having annual lease payments individually in excess of $50,000;
(vih) any agreement of indemnification or guaranty,guaranty other than in the ordinary course of business;
(viii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Corporation or any Subsidiary to engage in any line of business or to compete with any Person,;
(viiij) any agreement, contract or commitment relating to capital expenditures,expenditures and involving future payments in excess of $50,000;
(ixk) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company’s Corporation's business,;
(xl) any purchase order or contract for the purchase of raw materials involving $50,000 or more;
(m) any construction contracts;
(n) any agreement, contract or commitment, including distribution or agency or sales representative agreements, with any party which, during the last two fiscal years of the Corporation, accounted for, or is expected to account during the Corporation's current fiscal year, for more than five percent (5%) of the Corporation's revenue or trade payables;
(o) 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 (vi) hereof,
(xi) any purchase order or contract for . Each of the purchase of raw materials,
(xii) any construction contracts,
(xiii) any distribution, joint marketing or development agreement, or
(xiv) any other agreement, contract or commitment that is not cancelable without penalty within thirty (30) days.
(b) The Company Corporation and its Subsidiaries has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any Company agreement, contract or commitment set forth in Section 3.12 of the Disclosure Schedule, or (ii) any other material agreement, contract or commitment to which it is a party or by which it is bound (any such agreement, contract or commitment, a "Contract"). Each Company Contract is in full force and effect and and, except as otherwise disclosed in Section 3.12 of the Disclosure Schedule, is not subject to any default thereunder of which the Company or ORA have knowledge Corporation is aware by any party obligated to the Company Corporation or any Subsidiary pursuant thereto.
(c) No , other than late payments. Each of the Corporation and its Subsidiaries has obtained all necessary consents, waivers and approvals of parties to any Company Contract as are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, required in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered by the Transaction Agreements, or as are required or advisable in order to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result remain in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing effect without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had modification after the transactions contemplated by this Agreement not occurredthe Transaction Agreements. Each Contract requiring any consent, waiver or third-party approval as a result of the transactions contemplated by the Transaction Agreements is disclosed in Section 3.12 of the Disclosure Schedule. Neither the execution of the Transaction Agreements nor consummation of the transactions contemplated thereby will cause any default or breach under any Contract, including without limitation any key man clause in any Contract, or the acceleration of any payment obligation of the Corporation or any Subsidiary.
Appears in 2 contracts
Sources: Subscription Agreement (Vital Living Inc), Subscription Agreement (Skyepharma PLC)
Agreements, Contracts and Commitments. Neither Cyclacel, nor Seller in respect of the business or operations of Cyclacel, is a party to or bound by:
(a) Set forth in Schedule 2.13(a) is a list of all agreements, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the following:
(i) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(ii) any material bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,arrangements (including any agreements that contain severance pay);
(iiib) any employment employment, severance, change of control or consulting agreement, contract or commitment with an any employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organization,organization provides services to Cyclacel, not terminable by Cyclacel on ninety (90) days notice without liability, except to the extent general principles of wrongful termination law may limit Cyclacel’s ability to terminate employees at will;
(ivc) any fidelity agreement or surety bond plan, including any stock option plan, stock appreciation right plan or completion bond,stock purchase plan or other equity-based plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of either the Stock Purchase or the Liquidation or the value of any of the benefits of which will be calculated on the basis of either of Stock Purchase or the Liquidation;
(v) any lease of personal property,
(vid) any agreement of indemnification or guaranty,guaranty other than indemnification agreements between Cyclacel and any of its officers or directors;
(viie) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Cyclacel to engage in any line of business or to compete with any Person,;
(viiif) any agreement, contract or commitment relating to capital expenditures,expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty;
(ixg) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company’s business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xh) any mortgages, indentures, loans loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $100,000;
(i) any joint marketing or development agreement;
(i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any dealer, distributor, joint marketing, alliance, joint venture, shareholder, cooperation, development or other agreement currently in force under which Cyclacel has continuing material obligations to jointly market any product, technology or service, or any material agreement pursuant to which Cyclacel has continuing material obligations to jointly develop any Intellectual Property that will not be owned, in whole or in part, by Cyclacel; (iii) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Cyclacel product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Cyclacel products or service except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Cyclacel; or (iv) licenses or other agreements, including guaranties referred amendments to in clause (vi) hereof,such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights;
(xik) any collective bargaining agreements;
(l) any purchase order or contract for the purchase of raw materials,materials involving $250,000 or more;
(xiim) any construction contracts,contract;
(xiiin) any distribution, joint marketing fidelity or development agreement, surety bond or completion bond; or
(xivo) any other agreement, contract or commitment that is not cancelable without penalty within thirty (30) days.material to the business or operations of Cyclacel; or
(bp) The Company any other agreement, contract or commitment which was entered into otherwise than at arm’s length. Neither Seller nor Cyclacel has, nor to the Knowledge of Seller has not any other party to a Cyclacel Material Contract (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company Contract. Each Company Contract is in full force and effect and is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated to the Company pursuant thereto.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contractsagreements, including all exhibitscontracts or commitments to which Seller or Cyclacel is a party or by which either of them is bound of the type described in clauses (a) through (p) above (any such agreement, amendments and supplements and all material correspondence related thereto. No contract or commitment, a “Cyclacel Material Contract”) in such manner as would permit any other party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurred.cancel or
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Xcyte Therapies Inc)
Agreements, Contracts and Commitments. (a) Set Except as set forth in Schedule 2.13(a) is a list of all agreementson SCHEDULE 2.12(a), contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rightsdoes not have, (b) under which the Company has or may become subject is not a party to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it and is or may become not bound (collectively, the “Company Contracts”), including any of the followingby:
(i) any collective bargaining agreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iiiiv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(ivv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vvii) any lease of personal propertyproperty having a value individually in excess of $50,000,
(viviii) any agreement of indemnification or guaranty,
(viiix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any Personperson,
(viiix) any agreement, contract or commitment relating to capital expendituresexpenditures and involving future payments in excess of $50,000,
(ixxi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business,
(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 (viviii) hereof,
(xixiii) any purchase order or contract for the purchase of raw materialsmaterials involving $50,000 or more,
(xiixiv) any construction contracts,
(xiiixv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xivxvii) any other agreement, contract or commitment that involves $50,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in SCHEDULE 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company ContractEnd-User License or 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"). Each Company Contract is in full force and effect and and, except as otherwise disclosed in SCHEDULE 2.12(b), is not subject to any material default thereunder thereunder, of which the Company or ORA have knowledge has knowledge, by any party obligated to the Company pursuant thereto.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the ClosingEffective Time, the Company will be permitted to exercise all of the Company's rights that the Company had under the Company Contracts prior to without the Closing without payment of any additional amounts or consideration other than ongoing fees fees, royalties or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurred.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Citadel Technology Inc), Merger Agreement (Netscape Communications Corp)
Agreements, Contracts and Commitments. (a) Set forth Except as disclosed in Schedule 2.13(a) is a list Section 4.25 of all agreements, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rightsDisclosure Schedule, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the followingnot a party to:
(i) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iia) 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 arrangements,other arrangement covering the Company's employees;
(iiib) any employment agreement with any of the Company's employees that contains any severance pay liabilities or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,obligations;
(ivc) any fidelity agreement for personal services or surety bond employment with any of the Company's employees that is not terminable on 30 days' (or completion bond,less) notice by the Company without penalty or obligation to make payments related to such termination;
(v) any lease of personal property,
(vid) any agreement of guarantee or indemnification or guaranty,in an amount that is material to the Company;
(viie) any agreement, contract agreement or commitment containing any a covenant limiting or purporting to limit the freedom of the Company to compete with any person in any geographic area or to engage in any line of business or to compete with any Person,business;
(viiif) any agreementlease to which the Company is a party as lessor or lessee that (x) provides for future payments of $10,000 or more, contract or commitment relating to capital expenditures,
(ixy) any agreement, contract or commitment relating is material to the disposition or acquisition conduct of assets or any interest in any the business enterprise outside the ordinary course of the Company’s business,;
(xg) any mortgages, indentures, loans joint venture agreement 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 (vi) hereof,profit-sharing agreement;
(xih) any purchase order or contract except for the purchase of raw materials,
(xii) any construction contracts,
(xiii) any distribution, joint marketing or development agreement, or
(xiv) any other agreement, contract or commitment that is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company Contract. Each Company Contract is trade indebtedness incurred in full force and effect and is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated to the Company pursuant thereto.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result 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 termination acquisition of companies or nonrenewal other entities or indebtedness for borrowed money by way of such Company Contract. Following direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, or otherwise that individually is in the Closingamount of $5,000 or more;
(i) any license agreement, either as licensor or licensee, or distributor, dealer, franchise, manufacturer's representative, sales agency or other similar agreement or commitment;
(j) any agreement or arrangement for the assignment, sale or other transfer by the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts agreement or consideration lease (or right to payment thereunder) by which it leases materials, products or other property to a third party;
(k) any contract or agreement that provides any discount other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms Company's standard discount terms;
(l) any agreement or commitment for the acquisition, construction or sale of such fixed assets owned or to be owned by the Company;
(m) any current agreement or commitment, not elsewhere specifically disclosed pursuant to this Agreement, to which present or former directors, officers or Affiliates of the Company Contract had or any of their "ASSOCIATES" (as defined in the transactions contemplated rules and regulations promulgated under the Securities Act) are parties;
(n) any agreement or arrangement for the sale of any of the assets, properties or rights of the Company (other than in the ordinary course of business) or for the grant of any preferential rights to purchase any of its assets, properties or rights or any material agreement that requires the consent of any third party to the transfer and assignment of any of its assets, properties or rights;
(o) any contract providing for the payment of a commission or other fee calculated as or by this Agreement reference to the volume of web traffic or a percentage of the profits or revenues of the Company or of any business segment of the Company;
(p) any contract or agreement not occurreddescribed above involving the payment or receipt by the Company of more than $25,000, or, in the case of contracts involving payments by the Company, which cannot be terminated by it on 30 days' notice without penalty, cost or liability; or
(q) any contract or agreement not described above that is material to the business, operations, assets, financial condition, results of operations, properties or prospects of the Company, including without limitation, agreements relating to web site development and operations; marketing, promotion, affiliate and advertising, including search engine referrals and Internet private labeling; fulfillment operations; and telephone, credit card and freight carrier services.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Pc Connection Inc)
Agreements, Contracts and Commitments. (a) Set Except as set forth in on Schedule 2.13(a) is a list of all agreements, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”3.12(a), including any of the followingClickOver does not have, is not a party to nor is it bound by:
(i) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iiiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iiiiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organization,organization provides services to ClickOver;
(ivv) 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 accrue, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(vi) any fidelity or surety bond or completion bond,;
(vvii) any lease of personal property,material agreement, contract or commitment under which it has limited or restricted its right to compete with any person in any material respect;
(viviii) any agreement of indemnification or guaranty,;
(viiix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company ClickOver to engage in any line of business or to compete with any Person,person;
(viiix) any agreement, contract or commitment relating to capital expenditures,expenditures and involving future payments in excess of $10,000;
(ixxi) 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 ClickOver's business (except to the Company’s business,transactions provided for in this Agreement);
(xxii) 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 (viviii) hereof,;
(xixiii) any purchase order or contract for the purchase of raw materials,materials involving $10,000 or more;
(xii) any construction contracts,
(xiiixiv) any distribution, joint marketing or development agreement, or;
(xivxv) any assignment, license or other agreement with respect to any form of intangible property; or,
(xvi) any other agreement, contract or commitment that involves $10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 3.12(b), ClickOver has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any Company agreement, contract or commitment required to be set forth on Schedule 3.11 or Schedule 3.12(a) (any such agreement, contract or commitment, a "ClickOver Contract"). Each Company ClickOver Contract is in full force and effect and and, except as otherwise disclosed in Schedule 3.12(b), to the Knowledge of ClickOver is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated to the Company ClickOver pursuant thereto.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Merger Agreement (Adknowledge Inc)
Agreements, Contracts and Commitments. (a) Set forth in Schedule 2.13(a) Except as shown on the its balance sheet, the Vendor is not a list of all agreements, contracts, leases, licenses party to or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become otherwise subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the following:
written (i) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
collective bargaining agreement; (ii) commitments for the employment of any officer or employee which is not terminable (without liability) on a 30 days (or less) notice; (iii) profit sharing, bonus, deferred compensation, stock option, severance pay, pension, profit sharing retirement or retirement planssimilar plans or agreements providing employee benefits; (iv) mortgages, indentures, notes or other agreements, contracts commitments or instruments for or relating to any borrowing of money on the deferred purchase price of property; (v) guarantees of any obligations for the borrowing of money or otherwise, or any other employee benefit plans agreement of guarantee or arrangements,
(iii) any employment or consulting agreementindemnification, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(iv) any fidelity or surety bond or completion bond,
(v) any lease excluding endorsements made for collection in the ordinary course of personal property,
business; (vi) agreements, contracts or commitments for the purchase or sale of any agreement assets other than in the ordinary course of indemnification business or guaranty,
for the grant of any preferential rights to purchase any of its assets, properties or rights; (vii) any agreement114 agreements, contract contracts or commitment or other instruments containing any covenant limiting the its freedom of the Company to engage in any line of business in any area of the world or to compete with any Person,
person or entity or which constitute an undue material burden on its business, financial condition or properties, (viii) any agreementcontinuing agreements, contract contracts or commitment relating to capital expenditures,
commitments for future purchase of materials, supplies or equipment, (ix) any agreementagreements, contract contracts or commitment commitments relating to the disposition issuance of any securities or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s business,
capital expenditures involving future payments; (x) any mortgages, indentures, loans or credit agreements, security agreements contracts or other agreements or instruments commitments relating to the borrowing acquisition of money the assets or extension a substantial part of credit, including guaranties referred to in clause (vi) hereof,
the assets or capital stock of any business enterprise; (xi) agreements, contracts or commitments with any purchase order officer, director, 5% shareholder of the Vendor or contract for any "associate" or affiliate thereof as the purchase term is defined in Rule 405 of raw materials,
the Securities Act; (xii) any construction continuing agreements, contracts,
, or commitments for the future sale of products or rendering of services by the Vendor; or (xiii) agreements, contracts, commitments or other instruments not entered into in the ordinary Course of business. Except for debt payments to the creditors and in the amounts set forth in the attached Schedule B, the Vendor is not in default ▇▇▇▇▇▇ any distributionfranchise, joint marketing or development contract, agreement, or
(xiv) lease or other document to which it is a party or by which its properties are bound; and there have been no claims of defaults and there are no existing facts or conditions known to the Vendor or to its shareholders which, if continued or on notice, will result in a default under the contracts, agreements, leases or other documents to which the Vendor is a party or by which its property may be bound and which would adversely affect its business properties. Except as otherwise contemplated or permitted by this Agreement, between the date hereof and the closing date, the Vendor will not, without the prior consent of the Purchaser, which consent shall not be unreasonably withheld, amend, in any other material respect, or enter into, any contract, agreement, contract or commitment that is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any other instrument of the terms or conditions of any Company Contract. Each Company Contract is type described in full force and effect and is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated to the Company pursuant theretothis section.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Share Purchase Agreement (Global Industrial Services Inc)
Agreements, Contracts and Commitments. (a) Set Except as set forth in Schedule 2.13(aon Section 2.14(a) is a list of all agreementsthe Disclosure Letter, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liabilitydoes not have, or (c) by which the Company or any of the assets owned or used by it is or may become not bound (collectively, the “Company Contracts”), including any of the followingby:
(i) any agreements contract, license or arrangements that contain agreement to which the Company is a party (A) with respect to Company Intellectual Property licensed or transferred to any severance pay third party or post-employment liabilities (B) pursuant to which a third party has licensed or obligations,transferred any Intellectual Property to the Company, with a value or cost in excess of $10,000;
(ii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,;
(iii) 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;
(iv) any fidelity or surety bond or completion bond,;
(v) any lease of personal property,property with fixed annual rental payments in excess of $10,000;
(vi) any contract, license or agreement between the Company and any third party wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, hold harmless or otherwise assume or incur any obligation or liability with respect to the infringement or misappropriation by the Company or such third party of indemnification or guaranty,the Intellectual Property of any third party;
(vii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any Person,person;
(viii) any agreement, contract or commitment relating to capital expenditures,expenditures and involving future payments in excess of $10,000;
(ix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business,;
(x) 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 (vi) hereof,;
(xi) any purchase order or contract for the purchase of raw materials,materials involving $10,000 or more;
(xii) any construction contracts,;
(xiii) any distribution, joint marketing or development agreement, ; or
(xiv) any other agreement, contract or commitment that involves $15,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except as disclosed in Section 2.14(b) of the Disclosure Letter, the Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), and the Company Contractis 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 Company Contract is in full force and effect and is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated effect, and, to the knowledge of the Company, except as otherwise disclosed in Section 2.14(b) of the Disclosure Letter, all other parties to each Contract are in compliance with, and have not breached any term of, such Contract. The Company pursuant thereto.
(c) No has obtained or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Company Contract as are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, required thereunder in connection with the execution and delivery of this Agreement and Merger or to remain in effect without modification after the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company ContractClosing. Following the ClosingEffective Time, the Company will be permitted to exercise all of the Company's rights that under the Contracts to the same extent the Company would have been able to had under the Company Contracts prior to Merger not occurred and without the Closing without payment of any additional amounts or consideration other than ongoing fees fees, royalties or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurredpay.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tut Systems Inc)
Agreements, Contracts and Commitments. (a) Set Except as set forth in Schedule 2.13(aon Section 2.14(a) is a list of all agreementsthe Disclosure Letter, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liabilitydoes not have, or (c) by which the Company or any of the assets owned or used by it is or may become not bound (collectively, the “Company Contracts”), including any of the followingby:
(i) any agreements contract, license or arrangements that contain agreement to which the Company is a party (A) with respect to Company Intellectual Property licensed or transferred to any severance pay third party or post-employment liabilities (B) pursuant to which a third party has licensed or obligations,transferred any Intellectual Property to the Company, with a value or cost in excess of $5,000;
(ii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,;
(iii) 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;
(iv) any fidelity or surety bond or completion bond,;
(v) any lease of personal property,property with fixed annual rental payments in excess of $5,000;
(vi) any contract, license or agreement between the Company and any third party wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, hold harmless or otherwise assume or incur any obligation or liability with respect to the infringement or misappropriation by the Company or such third party of indemnification or guaranty,the Intellectual Property of any third party;
(vii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any Person,person;
(viii) any agreement, contract or commitment relating to capital expenditures,expenditures and involving future payments in excess of $5,000;
(ix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business,;
(x) 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 (vi) hereof,;
(xi) any purchase order or contract for the purchase of raw materials,materials involving $5,000 or more;
(xii) any construction contracts,;
(xiii) any distribution, joint marketing or development agreement, ; or
(xiv) any other agreement, contract or commitment that involves $5,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except as disclosed in Section 2.14(b) of the Disclosure Letter, the Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), and the Company Contractis 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 Company Contract is in full force and effect and is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated effect, and, to the knowledge of the Company, except as otherwise disclosed in Section 2.14(b) of the Disclosure Letter, all other parties to each Contract are in compliance with, and have not breached any term of, such Contract. The Company pursuant thereto.
(c) No has obtained or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Company Contract as are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, required thereunder in connection with the execution and delivery of this Agreement and Merger or to remain in effect without modification after the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company ContractClosing. Following the ClosingEffective Time, the Company will be permitted to exercise all of the Company's rights that under the Contracts to the same extent the Company would have been able to had under the Company Contracts prior to Merger not occurred and without the Closing without payment of any additional amounts or consideration other than ongoing fees fees, royalties or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurredpay.
Appears in 1 contract
Sources: Merger Agreement (Tut Systems Inc)
Agreements, Contracts and Commitments. (a) Set Except as set forth in on Schedule 2.13(a) is a list of all agreements4.13(a), contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liabilityis not a party to, or (c) by which the Company or bound by, any of the assets owned or used by it is or may become bound (collectively, following in connection with the “Company Contracts”), including any business of the followingsuch company:
(i) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,obligations with respect to any employee;
(ii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,;
(iviii) any fidelity or surety bond or completion bond,;
(v) any lease of personal property,
(viiv) any agreement of indemnification or guaranty,;
(vii) 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,
(viii) any agreement, contract or commitment relating to capital expenditures,
(ix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s business,
(x) 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 (vi) hereof,
(xiv) any purchase order or contract for the purchase of raw materials,materials involving $1,000, individually, or $20,000 in the aggregate;
(xii) any construction contracts,
(xiiivi) any distribution, joint marketing or development agreement, ; or
(xivvii) any other agreement, contract or commitment that involves $2,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received written notice that it such party has breached, violated or defaulted under, any of the terms or conditions of any Company Contractagreement, contract or commitment to which such party is a party or by which such party is bound with respect to its business or its assets, which breach, violation or default would have a Material Adverse Effect. Each Company Contract To the Company's, Principal's and/or Stockholder's knowledge, each such agreement, contract or commitment is in full force and effect in accordance with its terms. The Company is in compliance with, and has not breached any contract, license or agreement to which it is not subject a party or by which it is bound with respect to any default thereunder its business or its assets or by which its assets are bound, and, to the knowledge of which the Principal, Company and/or Stockholder, the Company or ORA have knowledge by any party obligated to the Company pursuant thereto.
(c) No consents, waivers and approvals of all other parties to all such contracts, licenses and agreements are in compliance with, and have not, to Principal's and/or Stockholder's knowledge, breached any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contractcontracts, licenses or agreements. Following the ClosingMerger Date, the Company Subsidiary will be permitted to exercise all rights of the rights that the Company had under the Company Contracts prior to without the Closing without payment of any additional amounts or consideration other than ongoing fees fees, royalties or payments which the Company such party would otherwise be required to pay pursuant pay.
(c) The contracts, licenses and agreements listed on Schedule 4.13(c) are all contracts, licenses and agreements, to which the Company is a party which still require performance of services or other obligations, including without limitation, indemnification, non-compete and non-disclosure obligations, delivery of materials or ongoing royalties or similar payments, either by such party or to the terms benefit of such Company Contract had party, other than "shrink wrap" and similar commercial end-user licenses. To the knowledge of the Company, Principal and/or Stockholder, the contracts, licenses and agreements listed on Schedule 4.13(c) are in full force and effect in accordance with its terms. Provided that the consents to assignment listed on Schedule 4.6 have been obtained, to the knowledge of the Company, Principal and/or Stockholder the consummation of the transactions contemplated by this Agreement not occurredwill neither violate nor result in the breach, modification, cancellation, termination, or suspension of the contracts, licenses and agreements listed on Schedule 4.13(c).
Appears in 1 contract
Sources: Supplemental Agreement (Accufacts Pre Employment Screening Inc)
Agreements, Contracts and Commitments. Except for payment under End-User Licenses and as set forth on Schedule 2.12(a), the Company does not have, and is not a party or bound by:
(a) Set forth in Schedule 2.13(a) is a list of all any collective bargaining agreements, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, ,
(b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the following:
(i) any agreements or arrangements that contain any severance pay change of control or post-employment liabilities or obligations, other than reasonable notice provisions at law,
(iic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iiid) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(ive) 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,
(f) any fidelity or surety bond or completion bond,
(vg) any lease of personal propertyPersonal property having a value individually in excess of Cdn$50,000,
(vih) any agreement of indemnification or guaranty,
(viii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any Person,
(viiij) any agreement, contract or commitment relating to capital expendituresexpenditures and involving future payments in excess of Cdn$50,000,
(ixk) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the business of the Company’s business,
(xl) 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 (vih) hereof,
(xim) any purchase order or contract for the purchase of raw materialsmaterials involving Cdn$35,000 or more,
(xiin) any construction contracts,
(xiiio) any distribution, joint marketing or development agreement,
(p) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xivq) any other agreement, contract or commitment that involves Cdn$50,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a 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 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 Company ContractEnd-User License or any agreement, contract or commitment required to be set forth on Schedule 2.12(a) (any such End-User License or any agreement, contract or commitment, a "CONTRACT," it being understood that this representation applies to license agreements, service agreements and management agreements in Company's standard form, which shall constitute Contracts for purposes of this Agreement, but need not be included in Schedule 2.12(a)). Each Company Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any material default thereunder of which the Company or ORA have knowledge has Knowledge by any party obligated to the Company pursuant thereto.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) . The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate no agreements with customers or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the suppliers involving credit terms of such Company Contract had the transactions contemplated by this Agreement not occurredmore than one year.
Appears in 1 contract
Sources: Share Exchange Agreement (8x8 Inc)
Agreements, Contracts and Commitments. (a) Set forth Except as disclosed in Schedule 2.13(a) is a list Section 4.25 of all agreements, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rightsDisclosure Schedule, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the followingnot a party to:
(i) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iia) 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 arrangements,other arrangement covering the Company's employees;
(iiib) any employment agreement with any of the Company's employees that contains any severance pay liabilities or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,obligations;
(ivc) any fidelity agreement for personal services or surety bond employment with any of the Company's employees that is not terminable on 30 days' (or completion bond,less) notice by the Company without penalty or obligation to make payments related to such termination;
(v) any lease of personal property,
(vid) any agreement of guarantee or indemnification or guaranty,in an amount that is material to the Company;
(viie) any agreement, contract agreement or commitment containing any a covenant limiting or purporting to limit the freedom of the Company to compete with any person in any geographic area or to engage in any line of business or to compete with any Person,business;
(viiif) any agreementlease to which the Company is a party as lessor or lessee that (x) provides for future payments of $10,000 or more, contract or commitment relating to capital expenditures,
(ixy) any agreement, contract or commitment relating is material to the disposition or acquisition conduct of assets or any interest in any the business enterprise outside the ordinary course of the Company’s business,;
(xg) any mortgages, indentures, loans joint venture agreement 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 (vi) hereof,profit-sharing agreement;
(xih) any purchase order or contract except for the purchase of raw materials,
(xii) any construction contracts,
(xiii) any distribution, joint marketing or development agreement, or
(xiv) any other agreement, contract or commitment that is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company Contract. Each Company Contract is trade indebtedness incurred in full force and effect and is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated to the Company pursuant thereto.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result 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 termination acquisition of companies or nonrenewal other entities or indebtedness for borrowed money by way of such Company Contract. Following direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, or otherwise that individually is in the Closingamount of $5,000 or more;
(i) any license agreement, either as licensor or licensee, or distributor, dealer, franchise, manufacturer's representative, sales agency or other similar agreement or commitment;
(j) any agreement or arrangement for the assignment, sale or other transfer by the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts agreement or consideration lease (or right to payment thereunder) by which it leases materials, products or other property to a third party;
(k) any contract or agreement that provides any discount other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms Company's standard discount terms;
(l) any agreement or commitment for the acquisition, construction or sale of such fixed assets owned or to be owned by the Company;
(m) any current agreement or commitment, not elsewhere specifically disclosed pursuant to this Agreement, to which present or former directors, officers or Affiliates of the Company Contract had or any of their "Associates" (as defined in the transactions contemplated rules and regulations promulgated under the Securities Act) are parties;
(n) any agreement or arrangement for the sale of any of the assets, properties or rights of the Company (other than in the ordinary course of business) or for the grant of any preferential rights to purchase any of its assets, properties or rights or any material agreement that requires the consent of any third party to the transfer and assignment of any of its assets, properties or rights;
(o) any contract providing for the payment of a commission or other fee calculated as or by this Agreement reference to the volume of web traffic or a percentage of the profits or revenues of the Company or of any business segment of the Company;
(p) any contract or agreement not occurreddescribed above involving the payment or receipt by the Company of more than $25,000, or, in the case of contracts involving payments by the Company, which cannot be terminated by it on 30 days' notice without penalty, cost or liability; or
(q) any contract or agreement not described above that is material to the business, operations, assets, financial condition, results of operations, properties or prospects of the Company, including without limitation, agreements relating to web site development and operations; marketing, promotion, affiliate and advertising, including search engine referrals and Internet private labeling; fulfillment operations; and telephone, credit card and freight carrier services.
Appears in 1 contract
Agreements, Contracts and Commitments. None of ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ (to the extent related to the Business) nor any of the SEG Entities is a party to or is bound by:
(a) Set forth in Schedule 2.13(aany agreement (or group of related agreements) is a list for the lease of all agreements, contracts, leases, licenses personal property to or commitments (a) under which the Company has from any person or may acquire any rights, entity;
(b) under which any agreement (or group of related agreements) for the Company has or may become subject to any obligation or liabilitypurchase of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services;
(c) by which any agreement concerning a partnership or joint venture;
(d) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the Company borrowing of money or extension of credit, or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the following:capitalized lease obligation;
(ie) any agreements agreement concerning confidentiality (except for ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ standard employee confidentiality agreements) or arrangements that contain any severance pay agreement, contract or post-employment liabilities commitment containing any covenant limiting the freedom of any SEG Entity to engage in any line of business or obligations,to compete with any person or entity;
(iif) any bonusprofit sharing, stock option, stock purchase, stock appreciation, deferred compensation, pension, profit sharing or retirement plansseverance, or any other employee plan or arrangement for the benefit plans of its current or arrangements,former directors, officers, and employees;
(iiig) any collective bargaining agreement;
(h) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,;
(ivi) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees other than business travel advances in the ordinary course of business consistent with past practice;
(j) any agreement pursuant to which any SEG Entity has an obligation to pay royalties or make other payments in connection with the sale of products or services by an SEG Entity in the ordinary course of business (Schedule 2.17 lists the parties to any such agreement and the duration of and amount of such royalties or other payment);
(k) any contract, agreement or license involving the SEG Intellectual Property or the Intellectual Property of any other Person;
(l) any fidelity or surety bond or completion bond,;
(v) any lease of personal property,
(vi) any agreement of indemnification or guaranty,
(vii) 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,
(viiim) any agreement, contract or commitment relating to capital expenditures,;
(ixn) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s business,business consistent with past practice;
(x) 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 (vi) hereof,
(xio) any purchase order or contract for the purchase of raw materials,;
(xiip) any construction contracts,;
(xiiiq) any distribution, joint marketing or development agreement, ; or
(xivr) any other agreement, contract or commitment that involves in excess of $50,000 or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company Contract. Each Company Contract is in full force and effect and is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated to the Company pursuant thereto.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Set forth Except as described in Schedule 2.13(a) is a list of all agreements, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any Section 3.21 of the assets owned AVANT Disclosure Schedule, AVANT is not a party to or used by it is or may become bound (collectively, the “Company Contracts”), including any of the followingby:
(i) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(ii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(iv) any fidelity or surety bond or completion bond,
(v) any lease of personal property,
(via) any agreement of indemnification or guaranty,guaranty not entered into in the ordinary course of business other than indemnification agreements between AVANT and any of their officers or directors;
(viib) any agreement, contract or commitment containing any covenant limiting the freedom of the Company AVANT to engage in any line of business or to compete with any Person,person;
(viiic) any agreement, contract or commitment relating to capital expenditures,expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty;
(ixd) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company’s business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xe) 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 in clause (vi) hereof,excess of $100,000;
(xif) any purchase order or contract for the purchase of raw materials,
(xii) any construction contracts,
(xiii) any distribution, joint marketing or development agreement, or;
(xivg) any distribution agreement (identifying any that contain exclusivity provisions);
(h) any other agreement, contract or commitment that (excluding real and personal property leases) which involve payment by AVANT under any such agreement, contract or commitment of $100,000 or more in the aggregate and is not cancelable without penalty within thirty (30) days.; or
(bi) The Company any other contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC). AVANT has not not, nor to AVANT’s knowledge has any other party to an AVANT Contract (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated violated, or defaulted under, any of the terms or conditions of, or terminated any of the agreements, contracts or commitments to which AVANT is a party or by which they are bound of the type described in clauses (a) through (k) above (any Company such agreement, contract or commitment, an “AVANT Contract”) in such manner as would permit any other party to cancel or terminate any such AVANT Contract, or would permit any other party to seek damages which would reasonably be expected to have an AVANT Material Adverse Effect. Each Company As to AVANT, each AVANT Contract is valid, binding, enforceable and in full force and effect effect, except as enforceability may be limited by bankruptcy and is not subject to any default thereunder other similar laws and general principles of which the Company or ORA have knowledge by any party obligated to the Company pursuant theretoequity.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as set forth in Section 3.18 of the Disclosure Letter, the Company does not have, is not a party to, nor is it bound by:
(a) Set forth in Schedule 2.13(a) is a list of all agreements, contracts, leases, licenses Any agreements that contain any unpaid severance liabilities or commitments (a) under which the Company has or may acquire any rights, obligations;
(b) under which the Company has Any agreement, contract or may become subject to any obligation or liabilitycommitment with a vendor, or service maintenance contract involving, a future obligation in excess of Ten Thousand Dollars ($10,000);
(c) by which Any agreement, contract or commitment with any customer of the Company or any of involving the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the following:Company's Intellectual Property Rights;
(id) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(ii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iii) any Any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,, not terminable by the Company on thirty days notice without liability;
(ive) any fidelity or surety bond or completion bond,
(v) any Any lease of personal property,property having a value in excess of Ten Thousand Dollars ($10,000);
(vif) any Any agreement of indemnification or guaranty,;
(viig) any 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,;
(viiih) any Any agreement, contract or commitment relating to capital expenditures,expenditures and involving future obligations in excess of Ten Thousand Dollars ($10,000);
(ixi) any Any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company’s business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xj) any Any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (vi) hereof,;
(xik) any purchase order or contract for the purchase of raw materials,
(xii) any construction contracts,
(xiii) any Any distribution, joint marketing or development agreement, or;
(xivl) any Any other agreement, contract or commitment that which involves Ten Thousand Dollars ($10,000) or more and is not cancelable without penalty within thirty (30) days.; or
(bm) Any agreement, contract or commitment which is otherwise material to the Company or its business. The Company has not breached, violated or defaulted under, or received any notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company Contractmaterial agreement, contract or commitment to which it is bound (including those set forth in the Disclosure Letter) in such manner as would permit any other party to cancel or terminate the same or seek material damages from the Company. Each Company Contract material agreement, contract or commitment required to be set forth in the Disclosure Letter is in full force and effect and and, except as otherwise disclosed, is not subject to any material default thereunder of which the Company or ORA have has knowledge by any party obligated to the Company pursuant thereto.
(c) No consents. There is no contract, waivers and approvals of parties agreement or commitment to which the Company is a party or is bound that is currently known or expected by the Company to result in any material loss to the Company Contract are necessary in order to avoid any breach, violation, default, acceleration upon completion or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) performance thereof. The Company has heretofore delivered to Monaco true, Buyer true and correct and complete copies of the Company Contractsall agreements, including all exhibits, amendments contracts and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out commitments listed in Section 3.18 of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurredDisclosure Letter.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Image Guided Technologies Inc)
Agreements, Contracts and Commitments. None of Watk▇▇▇-▇▇▇▇▇▇▇ (▇▇ the extent related to the Business) nor any of the SEG Entities is a party to or is bound by:
(a) Set forth in Schedule 2.13(aany agreement (or group of related agreements) is a list for the lease of all agreements, contracts, leases, licenses personal property to or commitments (a) under which the Company has from any person or may acquire any rights, entity;
(b) under which any agreement (or group of related agreements) for the Company has or may become subject to any obligation or liabilitypurchase of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services;
(c) by which any agreement concerning a partnership or joint venture;
(d) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the Company borrowing of money or extension of credit, or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the following:capitalized lease obligation;
(ie) any agreements agreement concerning confidentiality (except for Watk▇▇▇-▇▇▇▇▇▇▇'▇ ▇▇▇ndard employee confidentiality agreements) or arrangements that contain any severance pay agreement, contract or post-employment liabilities commitment containing any covenant limiting the freedom of any SEG Entity to engage in any line of business or obligations,to compete with any person or entity;
(iif) any bonusprofit sharing, stock option, stock purchase, stock appreciation, deferred compensation, pension, profit sharing or retirement plansseverance, or any other employee plan or arrangement for the benefit plans of its current or arrangements,former directors, officers, and employees;
(iiig) any collective bargaining agreement;
(h) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,;
(ivi) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees other than business travel advances in the ordinary course of business consistent with past practice;
(j) any agreement pursuant to which any SEG Entity has an obligation to pay royalties or make other payments in connection with the sale of products or services by an SEG Entity in the ordinary course of business (SCHEDULE 2.17 lists the parties to any such agreement and the duration of and amount of such royalties or other payment);
(k) any contract, agreement or license involving the SEG Intellectual Property or the Intellectual Property of any other Person;
(l) any fidelity or surety bond or completion bond,;
(v) any lease of personal property,
(vi) any agreement of indemnification or guaranty,
(vii) 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,
(viiim) any agreement, contract or commitment relating to capital expenditures,;
(ixn) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s business,business consistent with past practice;
(x) 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 (vi) hereof,
(xio) any purchase order or contract for the purchase of raw materials,;
(xiip) any construction contracts,;
(xiiiq) any distribution, joint marketing or development agreement, ; or
(xivr) any other agreement, contract or commitment that involves in excess of $50,000 or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company Contract. Each Company Contract is in full force and effect and is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated to the Company pursuant thereto.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Securities Purchase Agreement (Silicon Valley Group Inc)
Agreements, Contracts and Commitments. (a) Set Except as set forth in Schedule 2.13(aon Section 2.14(a) is a list of all agreementsthe Disclosure Letter, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it does not have and is or may become not bound (collectively, the “Company Contracts”), including any of the followingby:
(i) any agreements contract, license or arrangements that contain agreement to which the Company is a party (A) with respect to the Company Intellectual Property licensed or transferred to any severance pay third party or post-employment liabilities (3) pursuant to which a third party has licensed or obligations,transferred any Intellectual Property to the Company, with a value or cost in excess of $5,000;
(ii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,;
(iii) 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;
(iv) any fidelity or surety bond or completion bond,;
(v) any lease of personal property,property with fixed annual rental payments in excess of $5,000;
(vi) any contract, license or agreement between the Company and any third party wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, hold harmless or otherwise assume or incur any obligation or liability with respect to the infringement or misappropriation by the Company or such third party of indemnification or guaranty,the Intellectual Property of any third party;
(vii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any Person,person;
(viii) any agreement, contract or commitment relating to capital expenditures,expenditures and involving future payments in excess of $5,000;
(ix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business,;
(x) 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 (vi) hereof,;
(xi) any purchase order or contract for the purchase of raw materials,materials involving $5,000 or more;
(xii) any construction contracts,;
(xiii) any distribution, joint marketing or development agreement, ; or
(xiv) any other agreement, contract or commitment that involves $5,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except as disclosed in Section 2.14(b) of the Disclosure Letter, the Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), and the Company Contractis 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 Company Contract is in full force and effect and is not subject to any default thereunder of which the Company or ORA have knowledge by any party obligated effect, and, to the knowledge of the Company, except as otherwise disclosed in Section 2.14(b) of the Disclosure Letter, all other parties to each Contract are in compliance with, and have not breached any term of, such Contract. The Company pursuant thereto.
(c) No has obtained or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Company Contract as are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, required thereunder in connection with the execution and delivery of this Agreement and Merger or to remain in effect without modification after the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company ContractClosing. Following the ClosingEffective Time, the Company Surviving Corporation will be permitted to exercise all of the Company's rights that under the Contracts to the same extent the Company would have been able to had under the Company Contracts prior to Merger not occurred and without the Closing without payment of any additional amounts or consideration other than ongoing fees fees, royalties or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurredpay.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tut Systems Inc)
Agreements, Contracts and Commitments. (a) Set forth in Schedule 2.13(a) is a list of all agreements, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become The Purchased Assets are not subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound (collectively, the “Company Contracts”), including any of the following:
(i) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(ii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iii) 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 with a firm or other organization,;
(ivii) any fidelity or surety bond or completion bond,;
(viii) any lease of personal property,;
(viiv) any agreement of indemnification or guaranty,;
(viiv) 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 Person,royalties;
(viiivi) any agreement, contract or commitment relating to capital expenditures,
(ix) 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 the Company’s business,Person;
(xvii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or money, the extension of creditcredit or the continuing or future grant of any Lien;
(viii) any outstanding purchase order or Contract for the purchase of materials or services involving in excess of $10,000 individually or $50,000 in the aggregate;
(ix) any Contract containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, including guaranties referred to in clause non-competition, “most favored nations,” restriction on the operation or scope of its businesses or operations, or similar terms;
(vix) hereof,any dealer, distribution, marketing, development or joint venture agreement;
(xi) any purchase order sales representative, original equipment manufacturer, manufacturing, value added, marketing, remarketer, reseller, or contract for the purchase of raw materials,independent software vendor, distribution or other agreement;
(xii) any construction contracts,Contract with any customer of Seller IP, Seller R&D or the Business;
(xiii) any distributionContract between or among Seller IP or Seller R&D, joint marketing on the one hand, and any Seller (other than Seller IP or development agreementSeller R&D), oron the other hand;
(xiv) any other agreement, contract Contract or commitment that is obligates Seller IP, Seller R&D or the Business to provide future deliverables to any Person including, without limitation, licenses to Transferred IP or the performance of services;
(xv) any Contract that restricts or prohibits Seller IP or Seller R&D from hiring or soliciting for hire any individual to perform employment or consulting services for Seller IP, Seller R&D or the Business; or
(xvi) any Contract that does not cancelable without penalty within thirty (30) dayshave a limitation to liability arising from direct damages.
(b) The Company Each Assumed Contract is a valid and binding agreement, enforceable against each of the parties thereto in accordance with its terms and is in 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 Company such Contract. Each Company , nor to the Knowledge of Seller Parties, is any party obligated pursuant to any such Contract is in full force and effect and is not subject to any breach, violation or default thereunder thereunder, nor does any Seller Party have Knowledge of which any event that with the Company lapse of time, giving of notice or ORA both would constitute such a breach, violation or default. True and complete copies of each Assumed Contract have knowledge by any party obligated been Made Available to the Company pursuant theretoBuyer Parties.
(c) No Section 2.11(c) of the Disclosure Schedule sets forth all necessary consents, waivers and approvals of parties to any Company Contract Assumed Contracts as are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, required thereunder in connection with the execution and delivery of this Agreement and Acquisition Transactions or the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No party to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of such Company Contract had the transactions contemplated by this Agreement not occurredor any Related Agreement.
Appears in 1 contract