Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) of the Disclosure Letter (specifying the appropriate subparagraph), the Company is not a party to, nor is it bound by any of the following (each, a “Material Contract”): (i) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration; (ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023; (iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023; (iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company; (v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefits, or the accelerated vesting of benefits, upon the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or which provides for benefits with a value which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law); (vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”); (vii) any fidelity or surety bond or completion bond; (viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate; (ix) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business; (x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate; (xi) 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; (xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (xiii) any agreement set forth in Section 4.11; (xiv) any agreement providing a customer with refund rights; (xv) any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or (xvi) any Lease Agreement. (b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Yext, Inc.)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) 2.17 of the Disclosure Letter Schedule (specifying the appropriate subparagraphparagraph), the Company is not a party to, nor and is it not bound by any of the following (each, a “Material Contract”):by:
(i) any employment agreement or consulting agreement, contract or commitment with an employee or individual consultant or salesperson (other than any agreement or offer letter that is terminable at-“at will” employment agreements entered into in the ordinary course of business), without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Companyemployee, or any consulting or sales agreement, contract, or commitment with a firm or other organization;
(vii) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viiiii) any fidelity or surety bond or completion bond;
(viiiiv) any lease of personal property or equipment having a value in excess of $50,00010,000 individually or $25,000 in the aggregate;
(ixv) any lease of real property;
(vi) except as provided in Section 2.17(a)(vii) below, any agreement of indemnification or guaranty in excess of $50,000;
(vii) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty under any End User Agreement that are contained in (A) does not eliminate the Company’s written agreements with its customers, vendors, consultants potential liability for consequential or contractors that have been entered into in incidental damages or (B) place a cap on the ordinary course potential liability of businessthe Company under such agreement;
(xviii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000 individually or $50,000 in the aggregate;
(xiix) 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;
(xiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xi) any purchase order or contract for the purchase of materials involving in excess of $10,000 individually;
(xii) any construction contracts;
(xiii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement set forth in Section 4.11or similar agreement;
(xiv) any agreement providing a customer with refund rightsagreement, contract or commitment to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xv) any contractssales representative, licenses and agreements to which the Company (a) grants to a third Person a license original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other right in agreement for use or to any material Company Intellectual Propertydistribution of the products, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products technology or services to of the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) other than customer purchase orders, any Lease Agreementother agreement, contract or commitment that involves $50,000 individually or $150,000 in the aggregate or more with respect to any Person and is not cancelable without penalty within 30 days.
(b) For the 12 months ended December 31, 2002 and the 9 months ended September 30, 2003, there were no end-user customers that accounted for more than five percent (5%) of the Company’s net sales. Section 2.17(b) of the Disclosure Schedule contains a list of the Company’s 10 largest resellers for each of the last fiscal year and the 11 months ended November 26, 2003 and sets forth opposite the name of each such reseller the percentage of net sales attributable to such reseller. During the last 12 months, to the Knowledge of the Company, the Company has not received any written notices or threats of termination from any of such resellers that any such reseller intends or otherwise anticipates a termination or material reduction in the level of business with the Company. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.17 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Parent. Each Material Contract to which the Company is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company. The Company is in material compliance with and has not materially breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any such Material Contract. To the Company’s Knowledge, no party obligated to the Company pursuant to any such Material Contract has breached, violated or defaulted under such Material Contract, nor does the Company have Knowledge of or taken any event that would constitute action or failed to act, such a breachthat, violation or default with the lapse of time, giving of notice or both. Each , such action or failure to act would constitute such a breach, violation or default under such Material Contract is in full force by any such other party.
(c) The Company and effecteach of its Subsidiaries have fulfilled all material obligations required pursuant to each Material Contract to have been performed by the Company prior to the date hereof, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated and the Shareholders, without giving effect to the Merger, the Company pursuant will fulfill, when due, all of its obligations under the Material Contracts that remain to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days performed after the Closing. To the Knowledge date hereof.
(d) All outstanding indebtedness of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseits Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Samples: Merger Agreement (Altiris Inc)
Agreements, Contracts and Commitments. Except as disclosed in ------------------------------------- Section 2.12 to the Company Disclosure Letter, neither the Company nor the Subsidiary has and neither is a party to:
(a) Except as set forth in Section 4.15(aany collective bargaining agreements;
(b) of the Disclosure Letter (specifying the appropriate subparagraph)any employment, severance or other agreement pursuant to which the Company is not a party to, nor is it bound by or the Subsidiary has or may under any circumstances have an obligation to make severance payments in an aggregate amount of the following (each, a “Material Contract”):in excess of $25,000;
(ic) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(d) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any 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 or the Subsidiary, as the case may be, on 30 days' or less notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of law may limit the Company's or the Subsidiary's ability to terminate employees at will;
(ve) agreement or plan, including, without limitation, any agreement with stock option plan, stock appreciation right plan or stock purchase plan, any Employee under of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated (including the lapsing of repurchase rights under restricted stock purchase agreements), upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viif) any fidelity or surety bond or completion bond;
(viiig) any lease of personal property or equipment having a value individually in excess of $50,000in the aggregate;
(ixh) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business;
(xi) except to the extent that non-disclosure agreements entered into in the ordinary course of business prohibit the use of information deemed to be confidential, any agreement, contract or commitment containing any covenant limiting the freedom of the Company or the Subsidiary to engage in any line of business or compete with any person;
(j) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate50,000;
(xik) any agreement, contract or commitment relating to providing for the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company’s businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiil) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (h) hereof;
(xiiim) any agreement set forth in Section 4.11purchase order or contract for the purchase of raw materials or acquisition of assets involving $50,000 or more;
(xivn) any agreement providing a customer with refund rightsconstruction contracts;
(xvo) any contractsdistribution, licenses and agreements to which the Company (a) grants to a third Person a license joint marketing or development agreement, other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) than non-disclosure exclusive end user, distributor and reseller software license agreements entered into in the ordinary course of business; business and substantially in the Company's (iior the Subsidiary's) non-exclusive inbound licenses for uncustomized software that is generally commercially available standard form previously provided to the public on standard Parent;
(p) any other agreement, contract or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under commitment pursuant to which the only Company Intellectual Property granted, licensed aggregate payments to become due from or provided by to the Company equal or exceeds $50,000 and is to contractors not cancelable without penalty upon 30 days' or vendors, in the ordinary course of business, for the purpose of providing products or services less notice or
(q) any agreement which is otherwise material to the Company; (iv) Company’s contracts, licenses or agreements with its customers in 's business. Neither the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by nor the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) any Lease Agreement.
(b) The Company is in material compliance with and Subsidiary has not materially breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contractmaterial agreement, nor does contract or commitment listed or identified in Section 2.12 to the Company have Knowledge of Disclosure Letter in such manner as would permit any event that would constitute such a breach, violation other party to cancel or default with terminate the lapse of time, giving of notice or bothsame. Each Material Contract agreement, contract or commitment listed or identified in the Company Disclosure Letter (under any section or subsection thereof) is in full force and effecteffect and, to the best of the Company's or the Subsidiary's knowledge, as the case may be, is a legal, binding and enforceable obligation for or against the Company or the Subsidiary and, except as otherwise disclosed or defaults fully remedied or resolved, is not subject to any material default thereunder, nor to the Knowledge thereunder of which the Company is or the Subsidiary has knowledge by any party obligated to the Company or the Subsidiary pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisethereto.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Emachines Inc /De/)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts specified in clauses (i) through (xvii) below (collectively, the “Material Contracts”). Except as set forth in Section 4.15(a2.12(a) of the Disclosure Letter (specifying the appropriate subparagraph)Company Schedule, the Company does not have, is not a party to, to nor is it bound by any of the following (each, a “Material Contract”):by:
(i) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationcollective bargaining agreements;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023or arrangements that contain any severance pay;
(iii) any agreements with the currently active top 20 suppliers of the Companybonus, whether of products, services, royalty payments, Intellectual Property Rights pension or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023retirement plans;
(iv) any employment or consulting agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with or plan (including, any Employee under stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence Ancillary Agreements or the value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)hereby or thereby;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”)performance bond;
(vii) any fidelity lease of real or surety bond or completion bondpersonal property involving future payments in excess of $40,000 not cancelable by the Company without penalty of less than $40,000;
(viii) any lease agreement of personal property indemnification, guaranty or equipment having a value suretyship in excess of an amount greater than $50,000in the aggregate40,000;
(ix) any agreement agreement, contract or commitment containing any covenant limiting the freedom of indemnification the Company to engage in any line of business or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements to compete with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of businessany person;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate40,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the future disposition or acquisition of assets assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s businessenterprise;
(xii) any mortgagesmortgage, indenturesindenture, guarantees, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, other than Company credit cards with a credit limit of less than $10,000;
(xiii) any agreement set forth purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in Section 4.11the ordinary course of business;
(xiv) any agreement providing a customer with refund rightsconstruction contracts;
(xv) any contractsdistribution, licenses and agreements to which the Company (a) grants to a third Person a license joint marketing, licensing or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; ordevelopment agreement;
(xvi) any Lease Agreementinsurance policies;
(xvii) any other agreement, contract or commitment that involves or could result in aggregate payments to or by the Company of $25,000 or more and is not cancelable by the Company without penalty within thirty (30) days.
(b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does . Except as set forth in Section 2.12(b) of the Company have Knowledge of any event that would constitute such a breachSchedule, violation or default with the lapse of time, giving of notice or both. Each each Material Contract is in full force and effect, effect and the Company is not subject to any material breach, default thereunderor violation thereunder by the Company or, nor to the Knowledge of the Company is Shareholders’ Knowledge, by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any such Material Contract subject Contracts as are required to any material default thereunder. Except as set forth obtain in Section 4.15(b) of connection with the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely transactions contemplated hereby and by the passage of time or at Ancillary Agreements (the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise“Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a3.13(a) of the Company Disclosure Letter (specifying Schedule lists the appropriate subparagraph), the following Company is not a party to, nor is it bound by any Contracts in effect as of the following date of this Agreement (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of each Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) Contract relating to any Employee of the Company;
(v) any agreement with any Employee bonus, deferred compensation, severance, retention or incentive compensation, under which the Company has any ongoing actual or potential liability which provides for in excess of $50,000;
(ii) each Company Contract requiring payments by the increase Company after the date of benefitsthis Agreement in excess of $50,000 pursuant to its express terms relating to the employment of, or the accelerated performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by the Company on ninety (90) calendar days’ or less notice without liability, except to the extent applicable Law or general principles of wrongful termination Law may limit the Company’s, or such successor’s ability to terminate employees at will;
(iii) each Company Contract relating to any agreement or plan, including any option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or upon in conjunction with any other event, such as termination of employment), or the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated Contemplated Transactions;
(iv) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(v) each Company Contract containing (A) any covenant which would limit the freedom of the Surviving Company to engage in any line of business or compete with any Person, or would limit the development, manufacture, distribution or commercialization by this Agreement the Surviving Company of any of the Company’s products, technology or services, (B) any most-favored nation or other preferred pricing arrangement in favor of a Person other than the Company or any similar term by which any Person is or could become entitled to any benefit, right or privilege that must be at least as required by local Law)favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than the Company, or (D) any non-solicitation provision;
(vi) each Company Contract (A) pursuant to which any collective bargaining agreementsPerson granted the Company an exclusive license under any Intellectual Property, labor union Contracts (including B) pursuant to which the Company granted any Contract or agreement with Person an exclusive license under any works councilCompany IP Rights, trade union(C) required to be scheduled on Section 3.12(b) of the Company Disclosure Schedule, or other labor-relations entity(D) or similar Contract (each a “Labor Agreement”)required to be scheduled on Section 3.12(c) of the Company Disclosure Schedule;
(vii) any fidelity or surety bond or completion bondeach Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $50,000 pursuant to its express terms and not cancelable without penalty;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ix) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate;
(xi) any agreement, contract or commitment each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any business enterprise outside the ordinary course of the Company’s businessEntity;
(xiiix) each Company Contract relating to any mortgages, indentures, guaranteesloans, loans notes or credit agreements, security agreements agreements, or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $50,000, or creating any material Encumbrances, other than Permitted Encumbrances, with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company;
(x) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $50,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development, or other agreement currently in force under which the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company, or (D) any Contract to license any patent, trademark registration, service mark registration, trade name, or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for material Company Contracts entered into in the Ordinary Course of Business;
(xi) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(xii) each Company Real Estate Lease;
(xiii) any agreement set forth each Company Contract that is a material contract as defined in Section 4.11Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act;
(xiv) each Company Contract to which the Company is a party or by which any agreement providing a customer with refund rights;of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $50,000; or
(xv) any contracts, licenses and agreements to which the other Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software Contract that is generally commercially available to not terminable at will (with no penalty or payment) by the public on standard Company, and (A) which involves payment or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided receipt by the Company is to contractors after the date of this Agreement under any such agreement, contract or vendors, commitment of more than $50,000 in the ordinary course aggregate, or obligations after the date of business, for this Agreement in excess of $50,000 in the purpose of providing products aggregate or services (B) that is material to the Company; (iv) Company’s contracts, licenses business or agreements with its customers in operations of the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) any Lease Agreementtaken as a whole.
(b) The Company is has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto, other than the Company Material Contracts relating to any bonus, deferred compensation, severance, retention or incentive compensation, which have been provided to Parent or its counsel via email and are listed on Section 3.13(a) or 3.17(a) of the Company Disclosure Schedule. There are no Company Material Contracts that are not in material compliance with and written form. The Company has not materially not, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, nor does or would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As of the date of this Agreement, each Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is valid, binding, enforceable, and in full force and effect, and the Company is not subject to any default thereunderthe Enforceability Exceptions. No Person is renegotiating, nor or has a right pursuant to the Knowledge terms of the any Company is Material Contract to change, any party obligated material amount paid or payable to the Company pursuant to under any such Company Material Contract subject or any other material term or provision of any Company Material Contract, and to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party Person has indicated to a Material Contract has any intention of terminating such Material Contract with the Company in writing that it desires to renegotiate, modify, not renew or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisecancel any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) of on the Disclosure Letter (specifying the appropriate subparagraph)Parent Schedule, the Company Parent does not have, is not a party to, to nor is it bound by any of the following (each, a “Material Contract”):by:
(i) any employment agreement 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 than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationorganization;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31agreement or plan, 2023;
(iii) including, without limitation, any agreements with the currently active top 20 suppliers stock option plan, stock appreciation rights plan or stock purchase plan, any of the Company, whether benefits of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefitswill be increased by, or the accelerated vesting of benefitsbenefits of which will be accelerated by, upon or which would require the consent of any party thereto as a result of, the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viiiii) any fidelity or surety bond or completion bond;
(viiiiv) any lease of personal property or equipment having a value in excess of USD $50,00050,000 individually or USD $100,000 in the aggregate;
(ix) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(xv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of USD $50,000 100,000 individually or USD $250,000 in the aggregate;
(xivi) 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 Parent's business;
(xiivii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements licensing agreement or other agreements or instruments relating contract with respect to the borrowing of money or extension of creditIntellectual Property Rights;
(xiiiviii) any agreement set forth in Section 4.11joint venture, partnership, and other contract involving a sharing of profits, losses, costs, or liabilities by the Parent with any third party;
(xivix) any agreement providing a customer with refund rights;
(xv) contract containing covenants that in any contracts, licenses and agreements way purport to which restrict the Company (a) grants business activity of the Parent or any affiliate or limit the freedom of the Parent or any affiliate of the Parent to a third Person a license or other right engage in any line of business or to compete with any material Company Intellectual Propertythird party, or (b) is granted by a third Person a license or other right than customary non-disclosure and confidentiality obligations contained in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software , license agreements or customer agreements, and other than customary license restrictions that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, may be contained in Contracts entered into in the ordinary course of business, for the purpose ;
(x) any power of providing products attorney or services to the Company; other similar agreement or grant of agency;
(ivxi) Company’s contracts, licenses or agreements with its customers any contract entered into other than in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited contains or are otherwise terminable provides for an express undertaking by the Company; Parent to be responsible for consequential damages;
(xii) any oral or (v) proprietary informationwritten warranty, confidentiality guaranty, and assignment agreements or other similar undertaking with employees, consultants respect to product or contractorscontractual performance sold or extended by the Parent other than in the ordinary course of business; or
(xvixiii) any Lease Agreementamendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any All of the terms Contracts set forth or conditions required to be set forth on the Parent Schedule ("Contracts") are valid, binding and enforceable in accordance --------- with their respective terms, subject to laws of any Material Contractgeneral application relating to bankruptcy, nor does insolvency and the Company have Knowledge relief of any event that would constitute such a breachdebtors and other laws of general application effecting enforcement of creditors' rights generally, violation rules of law governing specific performance, injunctive relief or default with the lapse other equitable remedies, and limitations of time, giving of notice or both. Each Material Contract is public policy; and shall be in full force and effect, and effect without penalty in accordance with their terms upon consummation of the Company transactions contemplated hereby. The Parent does not have any present expectation or intention of not fully performing on a timely basis in all material respects all such obligations required to be performed by the Parent under any Contract set forth or required to be set forth on the Parent Schedule; no partially-filled or unfilled material customer purchase order or sales order is not subject to cancellation or any other material modification by the other party thereto or is subject to any default thereunderpenalty, nor right of set-off or other charge by the other party thereto for late performance or delivery; and the Parent does not have any knowledge of any cancellation or anticipated cancellation or any breach by the other parties to any Contract set forth or required to be set forth on the Knowledge Parent Schedule. The Parent is not a party to any Contract the performance of which could reasonably be expected to have a Parent Material Adverse Effect.
(c) Company has been given access to a true and correct copy of each of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as written Contracts that are set forth in Section 4.15(b) of on the Disclosure LetterParent Schedule, no Material Contract will terminatetogether with all amendments, waivers or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseother changes thereto.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Lynuxworks Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) 2.17 of the Disclosure Letter Schedule (specifying the appropriate subparagraphparagraph), neither the Company nor any Proxima Subsidiary is not a party to, nor is it or bound by any of the following (each, a “Material Contract”):by:
(i) any employment agreement or consulting agreement, contract or commitment with an employee or individual consultant or salesperson (other than any agreement or offer letter that is terminable at-"at will" employment agreements entered into in the ordinary course of business), without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Companyemployee, or any consulting or sales agreement, contract, or commitment with a firm or other organization;
(vii) other than the Company's Amended and Restated Option Plan, any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viiiii) any fidelity or surety bond or completion bond;
(viiiiv) any lease of personal property or equipment having a value in excess of $50,00025,000 individually or $100,000 in the aggregate;
(ixv) any lease of real property;
(vi) except as provided in Section 2.17(a)(vii) below, any agreement of indemnification or guaranty in excess of $25,000, other than the Company's or any Proxima Subsidiary's indemnification obligations under their respective End User Agreements;
(vii) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty under any End User Agreement that are contained in (A) does not eliminate the Company’s written agreements with its customers, vendors, consultants 's or contractors that have been entered into in any Proxima Subsidiary's potential liability for consequential or incidental damages or (B) place a cap on the ordinary course potential liability of businessthe Company or any Proxima Subsidiary's under such agreement;
(xviii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 25,000 individually or $100,000 in the aggregate;
(xiix) 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;
(xiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xi) any purchase order or contract for the purchase of materials involving in excess of $25,000 individually;
(xii) any construction contracts;
(xiii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement set forth in Section 4.11or similar agreement;
(xiv) any agreement providing a customer with refund rightsagreement, contract or commitment to alter the Company's interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xv) any contractssales representative, licenses and agreements to which original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorsProducts; or
(xvi) other than customer purchase orders, any Lease Agreementother agreement, contract or commitment that involves $25,000 individually or $100,000 in the aggregate or more with respect to any Person and is not cancelable without penalty within 30 days.
(b) Except as set forth in Section 2.17(b) of the Disclosure Schedule, there are no end-user customers that account for greater than five percent (5%) of the Company's consolidated net sales. Section 2.17(b) of the Disclosure Schedule contains a list of the Company's (on a consolidated basis) 10 largest resellers for each of the last fiscal year and the nine months ended September 30, 2006 and sets forth opposite the name of each such reseller the percentage of net sales attributable to such reseller. During the last 12 months, neither the Company nor any Proxima Subsidiary has received any written notices or threats of termination from any of such resellers that any such reseller intends or otherwise anticipates a termination or material reduction in the level of business with the Company or the Proxima Subsidiaries. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.17 (each a "Material Contract" and collectively, the "Material Contracts") have been delivered to the Buyer. Each Material Contract to which the Company or the Proxima Subsidiaries is a party or any of their properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company or the Proxima Subsidiaries enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company or the Proxima Subsidiaries, except as such enforceability may be limited by principles of public policy and subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. The Company and/or the Proxima Subsidiaries, as applicable, is in material compliance with and has not materially breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any such Material Contract. No party obligated to the Company or any Proxima Subsidiary pursuant to any such Material Contract has breached, violated or defaulted under such Material Contract, nor does the Company have Knowledge of or taken any event that would constitute action or failed to act, such a breachthat, violation or default with the lapse of time, giving of notice or both. Each , such action or failure to act would constitute such a breach, violation or default under such Material Contract is in full force and effect, and the Company is not subject to by any default thereunder, nor to the Knowledge such other party.
(c) Each of the Company is any party obligated and each of the Proxima Subsidiaries has fulfilled all of their respective obligations required pursuant to each Material Contract to have been performed by the Company and each of the Proxima Subsidiaries, as applicable, prior to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(bdate hereof.
(d) All outstanding indebtedness of the Disclosure Letter, no Material Contract will terminate, or Company and the Proxima Subsidiaries may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseprepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a2.14(a) of the Disclosure Letter Schedule (specifying the appropriate subparagraphparagraph, provided, that the failure to properly identify the correct paragraph or each paragraph that may be applicable, alone, shall not affect the accuracy or correctness of this representation or warranty), the Company is not a party to, nor is it bound by any of the following (each, a “Material Contract”):by:
(i) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(iiA) any agreements employment, contractor or consulting agreement, Contract or commitment with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31an Employee or salesperson, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(ivB) any agreement, contract Contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the CompanyEmployee, or (C) any consulting or sales agreement, contract, or commitment with a firm or other organization;
(vii) any agreement with or plan, including any Employee under stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated or may be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viiiii) any fidelity or surety bond or completion bond;
(viiiiv) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ix) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(x) any agreement, contract or commitment relating to capital expenditures and involving requiring future payments in excess of $5,000 annually or $50,000 in the aggregate;
(xiv) any Lease Agreements;
(vi) any agreement of indemnification or guaranty of performance, except for indemnities that do not materially differ in substance from the indemnification provisions that are typical and in the ordinary course of business of companies in the same industry as the Company;
(vii) any Contract relating to capital expenditures and requiring future payments in excess of $25,000 in the aggregate;
(viii) any agreement, 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 businessenterprise;
(xiiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(x) any purchase order or contract for the purchase of materials involving payments in excess of $15,000 individually or $50,000 in the aggregate;
(xi) any construction contracts;
(xii) any hedging, swap, derivative, International Swaps and Derivatives Association or similar Contract;
(xiii) any agreement set forth in Section 4.11dealer, distribution, joint marketing, strategic alliance, affiliate or development agreement;
(xiv) any agreement providing a customer with refund rightsagreement, contract or commitment to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xv) any contracts, licenses and agreements joint venture or joint development arrangement;
(xvi) any Contract pursuant to which the Company (a) grants or any of its subsidiaries is bound to a third Person a license or other right in has committed to provide any product or service to any material Company Intellectual Propertythird party on a most favored nation (MFN) basis or similar terms;
(xvii) any nondisclosure, confidentiality or (b) is granted by a third Person a license or similar agreement, other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure than nondisclosure agreements entered into in the ordinary course of business; (ii) business or non-exclusive inbound licenses disclosure or confidentiality provisions contained in Contracts otherwise disclosed in Section 2.14(a) of the Disclosure Schedule;
(xviii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for uncustomized software that is generally commercially available to use or distribution of the public on standard or nondiscriminatory termsproducts, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products technology or services to of the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvixix) any Lease Agreementother agreement, contract or commitment that involves $15,000 individually or $50,000 in the aggregate or more and is not cancelable without penalty within thirty (30) days.
(b) The Company has delivered or made available to Parent true and complete copies of each Contract required to be disclosed pursuant to Section 2.2, Sections 2.13(c), 2.13(g), 2.13(h) (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement), 2.13(j), 2.13(o), Section 2.14 and the Lease Agreements (each a “Material Contract” and collectively, the “Material Contracts”) and each of the other documents listed on the Disclosure Schedule.
(c) Each Material Contract to which the Company is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company, and, to the Knowledge of the Company, each other party thereto, enforceable against the Company, and, to the Knowledge of the Company, each other party thereto, in accordance with its terms, and is in full force and effect with respect to the Company and, to the Knowledge of the Company, each other party thereto, subject to (i) Laws of general application relating to bankruptcy, insolvency fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, and (ii) general principles of equity. Except as set forth in Section 2.14(c) of the Disclosure Schedule, the Company is in compliance in all material compliance respects with and has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material breach, violation or default thereunder, nor does the Company have Knowledge of any presently existing facts or circumstances that, with the lapse of time, giving of notice, or both would constitute such a material breach, violation or default by the Company or any such other party. As of the date hereof, other than in connection herewith, there are no new Contracts being actively negotiated that would be required to be listed in Section 2.14(a).
(d) The Company has fulfilled all material obligations required to have been performed by the Company pursuant to each Material Contract.
(e) Except as set forth in Section 4.15(b2.14(e) of the Disclosure LetterSchedule, no Material Contract will terminate, or all outstanding Indebtedness of the Company may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseprepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) 2.14 of the Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company is not a party to, nor is it bound by any of or any commitment to enter into any of the following Contracts (each, a “Material Contract”):
(i) any employment agreement other vendor or supply Contract involving expenditures of greater than any agreement $150,000 per year by the Company for the purchase of goods or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationservices;
(ii) any agreements employment, contractor or consulting Contract with an employee or consultant, contractor or salesperson that would reasonably be expected to result in payment in excess of $150,000 in any year, whether or not such service provider is terminable by the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023at will and without penalty;
(iii) any agreements with the currently active top 20 suppliers agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the Company, whether benefits of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or which provides for the value of any of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Lawincluding any severance or change of control agreements);
(viiv) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viiiA) any lease of personal property or equipment having a value in excess requiring payments of greater than $50,000in the aggregate50,000 per year and (B) any real property lease;
(ixv) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(x) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $20,000 individually or $50,000 in the aggregate;
(xivi) any agreement, contract or commitment Contract relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the business of the Company’s business;
(xiivii) any mortgages, indentures, guaranteesguaranties, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(viii) any Contract containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, non-solicitation, “most favored nations,” restriction on the operation or scope of its business or operations, or similar terms;
(ix) any in-bound licenses, out-bound licenses and cross-licenses, and any other contracts granting any other right, title or interest, with respect to material Intellectual Property Rights (whether the Company is (1) grantor or (2) grantee), but excluding (A) non-disclosure agreements that do not disclose any material confidential information and contain only ordinary course confidentiality obligations, (B) standard non-exclusive end user licenses and other standard non-exclusive customer agreements entered into by the Company in the ordinary course of business by which the Company licenses generally commercially available, non-customized Shrink-Wrap Code having a total acquisition cost, in the aggregate for all use by the Company of less than $100,000 for all use thereof of the Company;
(x) any joint venture, partnership, stockholder, voting trust or similar Contracts (other than the Voting Agreement);
(xi) any Contract containing change of control provisions relating to the Company;
(xii) any Contract requiring the Company to indemnify or hold harmless any person in respect of which the potential obligation could be material to the Company;
(xiii) any agreement set forth in Section 4.11Contract that would prevent, materially delay or materially impede the Company’s ability to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement;
(xiv) any agreement providing a customer other Contract not identified in clauses (i) through (xiii) above with refund rightsany of its officers, directors, employees, Affiliates or stockholders (or any Affiliates of any of the foregoing);
(xv) any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right Contract not identified in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding clauses (i) non-disclosure agreements entered into in the ordinary course of business; through (iixiv) non-exclusive inbound licenses for uncustomized software above that involves $150,000 or more and is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided not cancelable by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; without penalty within ninety (iv90) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorsdays; or
(xvi) any Lease Agreementother Contract not identified in clauses (i) through (xv) above with a duration or term of one year or more and is not cancelable by the Company without penalty.
(b) The Company has made available to Parent true, correct and complete copies of all Material Contracts, including each amendment, supplement or modification thereto, as in effect on the date hereof. The Company is in compliance in all material compliance with respects with, and has not materially breached, violated or defaulted under, or received written notice (or to the Company’s Knowledge, other notice) that it has materially breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does the Company have any Knowledge of any event that would constitute such a material breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) None of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party parties to a any Material Contract has terminated or given written notice (or to the Company’s Knowledge, other notice) of termination to the Company of any intention of terminating such Material Contract with or written notice of any such party’s intention not to use the Company’s services or to provide services to the Company or reducing the volume of business such party conducts with the Company, whether as a result under any of the Merger Material Contracts. Each Material Contract is valid and binding and in full force and effect except to the extent that the same may be subject to the Laws of general application relating to bankruptcy, insolvency, reorganization and the relief of debtors and rules of Law governing specific performance, injunctive relief, or otherwiseother equitable remedies.
Appears in 1 contract
Samples: Merger Agreement (Chicos Fas Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a3.13(a) of the Company Disclosure Letter (specifying Schedule lists the appropriate subparagraph), the following Company is not a party to, nor is it bound by any Contracts in effect as of the following date of this Agreement (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract relating to any employment agreement other than any agreement material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination paymentsretirement plans, or equity accelerationany other employee benefit plans or arrangements;
(ii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any agreements with Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by the currently active top 20 customers Company or its Subsidiaries on ninety (90) days’ or less notice without liability, except to the extent general principles of Company Products by revenues generated in connection with wrongful termination Law may limit the Company’s, its Subsidiaries’ or such customers on a consolidated basis for the 12-month period ended on December 31, 2023successor’s ability to terminate employees at will;
(iii) each Company Contract relating to any agreements with the currently active top 20 suppliers agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the Company, whether benefits of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or upon in conjunction with any other event, such as termination of employment), or the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement Contemplated Transactions;
(other than as required by local Law)iv) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(v) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Company’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision;
(vi) any collective bargaining agreements, labor union Contracts (including any each Company Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”)relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ix) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate;
(xi) any agreement, contract or commitment each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any business enterprise outside the ordinary course of the Company’s businessEntity;
(xiiviii) each Company Contract relating to any mortgages, indentures, guaranteesloans, loans notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company;
(ix) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or (D) any Contract to license any patent, trademark registration, service xxxx registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(x) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(xi) each Company Real Estate Lease;
(xii) each Company Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $100,000; or
(xiii) any agreement set forth in Section 4.11;
(xiv) any agreement providing a customer with refund rights;
(xv) any contracts, licenses and agreements to which the other Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software Contract that is generally commercially available to the public on standard not terminable at will (with no penalty or nondiscriminatory terms, including licenses for Open Source; (iiipayment) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendorsits Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $100,000 in the ordinary course aggregate, or obligations after the date of business, for this Agreement in excess of $100,000 in the purpose of providing products aggregate or services (B) that is material to the Company; (iv) Company’s contractsbusiness or operations of the Company and its Subsidiaries, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) any Lease Agreementtaken as a whole.
(b) The Company is has delivered or made available to Zordich accurate and complete copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in material compliance with and written form. Neither the Company nor any of its Subsidiaries has, nor to the Company’s Knowledge, as of the date of this Agreement has not materially any other party to a Company Material Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, nor does or would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Company have Knowledge and its Subsidiaries, as of any event that would constitute such a breachthe date of this Agreement, violation or default with the lapse of time, giving of notice or both. Each each Company Material Contract is valid, binding, enforceable and in full force and effect, and the Company is not subject to any default thereunderthe Enforceability Exceptions. No Person is renegotiating, nor or has a right pursuant to the Knowledge terms of the any Company is Material Contract to change, any party obligated material amount paid or payable to the Company pursuant to under any such Company Material Contract subject to or any other material default thereunder. Except as set forth in Section 4.15(b) term or provision of the Disclosure Letter, no any Company Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseContract.
Appears in 1 contract
Samples: Merger Agreement (Zafgen, Inc.)
Agreements, Contracts and Commitments. (aA) Except as set forth specifically disclosed in Section 4.15(a) of the Disclosure Letter (specifying the appropriate subparagraph)Schedule 2.12, the Company Vista Vacations does not have, is not a party to, to nor is it bound by any of the following (each, a “Material Contract”):by:
(i1) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationAny collective bargaining agreements;
(ii2) Any agreements that contain any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023unpaid severance liabilities or obligations;
(iii3) Any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights other employee benefit plans or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023arrangements;
(iv4) any Any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, not terminable by Vista Vacations on thirty days notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) law may limit Vista Vacations' ability to any Employee of the Companyterminate employees at will;
(v5) Any agreement or plan, including, without limitation, any agreement with stock option plan, stock appreciation right plan or stock purchase plan, any Employee under of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi6) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any Any fidelity or surety bond or completion bond;
(viii7) any Any lease of personal property or equipment having a value individually in excess of $50,000in the aggregate2,000;
(ix) any 8) Any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business;
(x9) Any agreement, contract or commitment containing any covenant limiting the freedom of Vista Vacations to engage in any line of business or compete with any person;
(10) Any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 2,000 in any single instance or $10,000 in the aggregate;
(xi11) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xii12) any Any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in Schedule 2.12(A)(12) hereof;
(xiii13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any agreement set forth single instance or $10,000 or more in Section 4.11the aggregate;
(xiv14) any agreement providing a customer with refund rightsAny construction contracts;
(xv15) Any distribution, joint marketing or development agreement;
(16) Any other agreement, contract or commitment which involves $1,000 or more in any contracts, licenses and agreements to which the Company (a) grants to a third Person a license single instance or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into more than $10,000 in the ordinary course aggregate and is not cancelable without penalty within thirty (30) days other than standard end-user licenses of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses Vista Vacations' products and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary informationconsistent with past practice, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi17) any Lease AgreementAny agreement which is otherwise material to Vista Vacations' business.
(bB) The Company is in material compliance with and (1) Vista Vacations has not materially breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contractagreement, nor does the Company have Knowledge of any event that would constitute such a breach, violation contract or default with the lapse of time, giving of notice or both. Each Material Contract commitment to which it is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as bound (including those set forth in Section 4.15(bany of Vista Vacations Schedules) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no in such manner as would permit any other party to a Material Contract has any intention of terminating such Material Contract with cancel or terminate the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisesame.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a3.17(a) of the Disclosure Letter (specifying the appropriate subparagraph)Schedules, the Company is not a party to, nor is it to or bound by any of the following (each, a “Material Contract”):by:
(i1) any employment employment, sales or consulting agreement or other than Contract with an employee, individual consultant or salesperson;
(2) any agreement or offer letter that is terminable at-willplan, without prior notice and without triggering including any obligation option plan, incentive plan or purchase plan with respect to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers Equity Interests of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone Transactions or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Transactions; W02-SD:6AFP1\51393538 -26- Agreement (other than as required by local Law);and Plan of Merger 09EY-117690 PAGE
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii3) any fidelity or surety bond or completion bond;
(viii4) any lease Lease of personal property or equipment having a value an annual rental rate in excess of $50,0005,000 individually or $10,000 in the aggregate;
(ix5) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(x) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $50,000 5,000 individually or $10,000 in the aggregate;
(xi6) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets or any interest in any business enterprise Entity outside the ordinary course Ordinary Course of the Company’s businessBusiness;
(xii7) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or extension of credit;
(xiii8) any purchase order or contract for the purchase of materials exceeding $5,000 individually or $10,000 in the aggregate;
(9) any agreement construction contracts;
(10) any dealer, distribution, sales, joint marketing or development Contract;
(11) any sales representative, original equipment manufacturer, value added, remarketing, reseller or independent software vendor or other Contract (other than Licenses) for use or distribution of any Company Product, any Company Intellectual Property, Material Intellectual Property Rights or any services provided by the Company; or
(12) any other Contract not otherwise set forth in Section 4.11;
(xiv3.17(a) any agreement providing a customer with refund rights;
(xv) any contracts, licenses and agreements to which of the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software Disclosure Schedules that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; not cancelable without penalty within thirty (iii30) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) any Lease Agreementcalendar days.
(b) The Except as set forth in Section 3.17(b) of the Disclosure Schedules, the Company is in material compliance with and has not materially breached, violated Breached or defaulted under, or received notice that it has breached, violated Breached or defaulted under, any of the terms or conditions of any Material ContractContract or license to which it is party or by which it is bound or under which it is a licensee, nor does the Company have Knowledge of any event Event that would constitute such a breach, violation Breach or default with the lapse of time, giving of notice or both. Each Material such Contract and license is in full force and effect, effect and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. .
(c) Except as set forth in Section 4.15(b3.17(c) of the Disclosure LetterSchedules, no Material Contract will terminatethe Company has obtained, or may be terminated by either partywill obtain prior to the Closing, solely by all necessary Consents of parties to all Company Contracts as are required thereunder in connection with the passage consummation of time the Transactions, so that (i) the consummation of the Transactions shall not Breach any such Company Contract, and (ii) each such Company Contract shall remain in full force and effect without modification, limitation or at the election of either party within 120 days alteration after the Closing. To Following the Closing, the Surviving Corporation will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than amounts or consideration which the Company would otherwise be required to pay had the Merger not occurred. Without limiting the foregoing, the consummation of the Transactions will not (i) result in the Breach of any Company Contract, (ii) adversely impact any existing Company Contract with any Governmental Body, or (iii) to the Knowledge of the Company, no party result in any Material decrease in orders of Company Products or Technology from, or sales, licensing or other distributions of Company Products or Technology to, any customer or client set forth in Section 3.30 of the Disclosure Schedules. W02-SD:6AFP1\51393538 -27- Agreement and Plan of Merger 09EY-117690 PAGE
(d) Section 3.17(d) of the Disclosure Schedules sets forth a complete and accurate list of all offers or bids made to a Material Contract has any intention customer or prospective customer of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result which offer or bid (i) could generate revenues or involve expenses in excess of $150,000, and (ii) has not been rejected by each Person who has the Merger right to accept such offer or otherwisebid. The Company has heretofore delivered true and complete copies of each such offer or bid to Parent.
Appears in 1 contract
Samples: Merger Agreement (Spacedev Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a2.11(a) of the Lanacom Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company is not a party to, neither Lanacom nor is it bound by any of the following (eachLanacom Subsidiaries have continuing obligations under, nor are any of them a “Material Contract”):party to nor are bound by:
(i) any employment agreement other than any agreement voluntary recognition agreements, accreditation order or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationcollective bargaining agreements;
(ii) any agreements with or arrangements that contain any severance pay, post- employment liabilities or obligations or "golden parachute" provisions (or similar provisions which provide for payment of consideration upon the currently active top 20 customers completion of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023transactions contemplated herein);
(iii) any agreements with the currently active top 20 suppliers of the Companybonus, whether of productsincentive, servicesdeferred compensation, royalty paymentspension, Intellectual Property Rights profit sharing or otherwiseretirement plans, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment to grant any severance with an employee or termination pay individual consultant or benefits (in cash salesperson or otherwiseconsulting or sales agreement, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Companycontract or commitment with a firm or other organization;
(v) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than Agreement, except as required by local Law)provided herein;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viiivii) any lease of personal property or equipment having a value annual lease payments individually in excess of $50,00025,000;
(viii) any agreement of indemnification, warranty or guaranty other than in the aggregateordinary course of business;
(ix) any agreement agreement, contract or commitment containing any covenant limiting the freedom of indemnification Lanacom or guaranty, but excluding agreements any of indemnification the Lanacom Subsidiaries to engage in any line of business or guaranty that are contained in the Company’s written agreements to compete with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of businessany person;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate25,000;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets any material assets, or any interest in any business enterprise outside the ordinary course of Lanacom and the Company’s Lanacom Subsidiaries' business, taken as a whole;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiii) any agreement set forth in Section 4.11distribution, joint marketing or development agreement;
(xiv) any agreement providing a agreement, contract or commitment with any customer with refund rightswhich, during the last two fiscal years of Lanacom, accounted, or is expected to account during Lanacom's current fiscal year, for more than 5% of Lanacom's revenue or trade payables;
(xv) any contractsother agreement, licenses and agreements contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days;
(xvi) transfer or license to which the Company (a) grants any third party or otherwise extend, amend or modify any rights to a third Person a Lanacom Intellectual Property or acquire, license or other otherwise procure any intellectual property right in or to of any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorsparty; or
(xvixvii) enter into any Lease Agreementagreement restricting Lanacom or any of the Lanacom Subsidiaries from any business activity.
(b) The Company is Except for any alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in material compliance with and has not materially Section 2.11(b) of the Lanacom Disclosure Schedule, neither Lanacom nor any of the Lanacom Subsidiaries have breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material agreement, contract or commitment to which it is bound (including those set forth in the Lanacom Disclosure Schedule (any such agreement, contract or commitment, of Lanacom or its Subsidiaries (a "Lanacom Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both")). Each Material Lanacom Contract is in full force and effecteffect and, and except as otherwise disclosed in Section 2.11(b) of the Company Lanacom Disclosure Schedule, is not subject to any default thereunder, nor to the Knowledge thereunder of which Lanacom or any of the Company Lanacom Subsidiaries is aware by any party obligated to the Company pursuant to Lanacom or any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseLanacom Subsidiaries pursuant thereto.
Appears in 1 contract
Samples: Agreement and Plan of Acquisition (Backweb Technologies LTD)
Agreements, Contracts and Commitments. (a) Except as set forth disclosed in ------------------------------------- Section 4.15(a) 2.12 of the Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company does not have and is not a party to, nor is it bound by any of the following (each, a “Material Contract”)::
(ia) any collective bargaining agreements,
(b) any agreements that contain any unpaid severance liabilities or obligations,
(c) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements,
(d) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any 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, except to grant the extent general principles of wrongful termination law may limit the Company's ability to terminate employees at will,
(e) agreement or plan, including, without limitation, any severance stock option plan, stock appreciation right plan or termination pay or benefits (in cash or otherwisestock purchase plan, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law);Agreement,
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viif) any fidelity or surety bond or completion bond;,
(viiig) any lease of personal property or equipment having a value individually in excess of $50,000in the aggregate;,
(ixh) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business;,
(xi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or compete with any person,
(j) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate;50,000,
(xik) 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,
(xiil) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;, including guaranties referred to in clause (h) hereof,
(xiiim) any purchase order or contract for the purchase of raw materials or acquisition of assets involving $50,000 or more,
(n) any construction contracts,
(o) any distribution, joint marketing or development agreement,
(p) any other agreement, contract or commitment which involves $50,000 or more and is not cancelable without penalty within thirty (30) days, or
(q) any agreement set forth in Section 4.11;
(xiv) any agreement providing a customer with refund rights;
(xv) any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any is otherwise material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) any Lease Agreement.
(b) 's business. The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice in writing any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contractagreement, nor does the Company have Knowledge of any event that would constitute such a breach, violation contract or default with the lapse of time, giving of notice or both. Each Material Contract commitment to which it is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as bound (including those set forth in Section 4.15(b) any of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely lists separately certified by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no ) in such manner as would permit any other party to a Material Contract has any intention of terminating such Material Contract with cancel or terminate the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisesame.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Flycast Communications Corp)
Agreements, Contracts and Commitments. (aA) Except as set forth specifically disclosed in Section 4.15(a) of the Disclosure Letter (specifying the appropriate subparagraph)Schedule 2.12, the Company WRI does not have, is not a party to, to nor is it bound by any of the following (each, a “Material Contract”):by:
(i1) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationAny collective bargaining agreements;
(ii2) Any agreements that contain any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023unpaid severance liabilities or obligations;
(iii3) Any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights other employee benefit plans or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023arrangements;
(iv4) any Any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, not terminable by WRI on thirty days notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) law may limit WRI's ability to any Employee of the Companyterminate employees at will;
(v5) Agreement or plan, including, without limitation, any agreement with stock option plan, stock appreciation right plan or stock purchase plan, any Employee under of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi6) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any Any fidelity or surety bond or completion bond;
(viii7) any Any lease of personal property or equipment having a value individually in excess of $50,000in the aggregate2,000;
(ix) any 8) Any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business;
(x9) Any agreement, contract or commitment containing any covenant limiting the freedom of WRI to engage in any line of business or compete with any person;
(10) Any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 5,000 in any single instance or $20,000 in the aggregate;
(xi11) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xii12) any Any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in Schedule 2.12(A)(12) hereof;
(xiii13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any agreement set forth single instance or $20,000 or more in Section 4.11the aggregate;
(xiv14) any agreement providing a customer with refund rightsAny construction contracts;
(xv15) Any distribution, joint marketing or development agreement;
(16) Any other agreement, contract or commitment which involves $2,000 or more in any contracts, licenses and agreements to which the Company (a) grants to a third Person a license single instance or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into more than $20,000 in the ordinary course aggregate and is not cancelable without penalty within thirty (30) days other than standard end-user licenses of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses WRI's products and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary informationconsistent with past practice, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi17) any Lease AgreementAny agreement which is otherwise material to WRI's business.
(bB) The Company is in material compliance with and (1) WRI has not materially breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contractagreement, nor does the Company have Knowledge of any event that would constitute such a breach, violation contract or default with the lapse of time, giving of notice or both. Each Material Contract commitment to which it is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as bound (including those set forth in Section 4.15(bany of WRI Schedules) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no in such manner as would permit any other party to a Material Contract has any intention of terminating such Material Contract with cancel or terminate the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisesame.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as contemplated by this Agreement or as set forth in Section 4.15(a) on Schedule 3.15 of the Disclosure Letter (specifying the appropriate subparagraph)Schedule, neither the Company nor the Subsidiary is not a party to, nor is it either of them bound by by:
(a) any agreements or arrangements with any current employee or consultant that contains any severance pay or post-employment liabilities or obligations;
(b) any collective bargaining agreements;
(c) any employment or consulting agreement, contract, or commitment with any officer, employee, individual consultant or salesperson, or consulting or sales agreement, contract, or commitment with a firm or other organization;
(d) any bonus, deferred compensation, pension, profit sharing, severance, or retirement plans or agreements, or any other employee benefit plans or arrangements;
(e) any stock option or stock purchase plan or arrangement, stock appreciation, bonus, deferred compensation, pension, profit sharing, or retirement plans, or any other employee benefit plans or arrangements;
(f) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan, or stock purchase plan, any of the following (each, a “Material Contract”):
(i) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viig) any fidelity or surety bond or completion bond;
(viiih) any agreement, contract, or commitment for the lease of personal property or equipment having a value individually in excess of $50,000in the aggregate5,000;
(ixi) any agreement of indemnification agreement, contract, or guaranty, but excluding agreements commitment of indemnification or guaranty other than as set forth on Schedule 3.14, subject to such reasonable variations therein that are contained in not individually materially adverse to the Company’s written agreements with its customersCompany or the Subsidiary, vendors, consultants or contractors that have been entered into in as the ordinary course of businesscase may require;
(xj) any agreement, contract contract, or commitment containing any covenant limiting the freedom of the Company or the Subsidiary to engage in any line of business or to compete with any person or entity;
(k) any agreement, contract, or commitment relating to capital expenditures and involving future payments in excess of $50,000 25,000 in the aggregate;
(xil) any agreement, contract contract, or commitment relating to the disposition or acquisition of assets (other than in the ordinary and usual course of business) or any interest in any business enterprise outside the ordinary course of the Company’s businessenterprise;
(xiim) any mortgages, indentures, guarantees, loans loans, or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or the Subsidiary or extension of creditcredit to the Company or the Subsidiary;
(xiiin) any agreement set forth agreement, contract, or commitment concerning confidentiality (other than those entered in Section 4.11the ordinary and usual course of business);
(xivo) any agreement providing a customer with refund rights;
(xv) any contractsagreement, licenses and agreements contract, or commitment pursuant to which the Company (a) grants or the Subsidiary has granted or may grant in the future, to any party, a third Person a source-code license or option or other right in to use or acquire source-code, including any agreements which provide for source code escrow arrangements;
(p) any sales representative, original equipment manufacturer, value added, remarketer, or other agreement for distribution of the products, technology, or services of the Company or the Subsidiary, or the products or services of any other person or entity or any dealer, joint marketing (including any pilot program), or development agreement;
(q) any agreement, contract, or commitment pursuant to which the Company or the Subsidiary has advanced or loaned any amount to any material shareholder of the Company Intellectual Propertyor the Subsidiary or any director, officer, employee, or (b) is granted by a third Person a license consultant of the Company or the Subsidiary other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into than business travel advances in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary usual course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements consistent with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorspast practice; or
(xvir) any Lease Agreement.
(b) The other agreement, contract, or commitment that involves payment by the Company or the Subsidiary of $25,000 or more or which is in material compliance with and not cancelable without penalty within 30 days. Neither the Company nor the Subsidiary has not materially breached, violated violated, or defaulted under, or received notice that it has breached, violated violated, or defaulted under, any of the terms or conditions of any Material agreement, contract or commitment required to be set forth on any schedule relating to the representations and warranties set forth in Schedule 3.13 or on Schedule 3.15 of the Disclosure Schedule (any such agreement, contract or commitment, a "Contract"). Each of the Contracts is legal, nor does valid and binding on the Company have Knowledge or the Subsidiary, as the case may require, and, to the knowledge of the Company and the Shareholders, the respective other parties thereto and is in full force and effect, and to the to the knowledge of the Company and the Shareholders, is enforceable against each party thereto in accordance with its terms. Neither the Company nor any Shareholder has knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice notice, or bothboth under any Contract. Each Material Contract is in full force and effect, effect and the Company is not subject to any default thereunderdefault, nor to the Knowledge of which the Company is or any Shareholder has knowledge, by any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunderthereto. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after Following the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume Subsidiary, as the case may require, shall have the right to exercise all of business its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments that the Company or the Subsidiary would otherwise be required to pay pursuant to the terms of such party conducts with Contracts had the Companytransaction contemplated by this Agreement not occurred. Without limiting the foregoing, whether as a result upon consummation of the Merger transactions contemplated by this Agreement, each Contract shall continue in full force and effect in accordance with its terms without penalty or otherwiseother adverse consequence.
Appears in 1 contract
Agreements, Contracts and Commitments. (aSCHEDULE 3.13(a) lists all written contracts or other agreements not included on Schedule 3.12(g) to which the Company is a party. Except as set forth in Section 4.15(a) of the Disclosure Letter (specifying the appropriate subparagraphon SCHEDULE 3.13(a), the Company has not been nor is not currently a party to, to nor is it bound by any of the following (each, a “Material Contract”whether written or oral):
(i) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationcollective bargaining agreements;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12or arrangements that contain any severance pay or post-month period ended on December 31, 2023employment liabilities or obligations;
(iii) any agreements with the currently active top 20 suppliers of the Companybonus, whether of productsdeferred compensation, servicespension, royalty paymentsprofit sharing or retirement plans, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023any other employee benefit plans or arrangements;
(iv) any agreementhealth, contract medical, dental, life or commitment to grant any severance other employee welfare benefit plans or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Companyarrangements;
(v) any agreement tuition reimbursement, dependent care reimbursement or other tax-favored employee fringe benefit plans or arrangements;
(vi) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any Employee consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company has Company.
(vii) any ongoing liability agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viiviii) any fidelity or surety bond or completion bond;
(viiiix) any lease of personal property agreement, contract or equipment having a value commitment under which it has limited or restricted its right to compete with any person in excess of $50,000in the aggregateany respect;
(ixx) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(xxi) 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;
(xii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate5,000;
(xixiii) 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;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiii) any agreement set forth in Section 4.11;
(xiv) any agreement providing a customer with refund rights;
(xv) any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) any Lease Agreement.
(b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (North American Scientific Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) Schedule 2.13 includes a list of all ------------------------------------- ------------- agreements, contracts and commitments, written or oral, to which Genius is a party or by which it is bound, excluding all agreements, contracts or commitments which pertain solely and exclusively to the portion of the Disclosure Letter (specifying Business which consists of the appropriate subparagraph)Retained Assets, the Company is not a party to, nor is it bound by any of including the following (eachprovided, a “Material Contract”however, that no agreements, contracts or commitments representing liability in excess of DM 5.000 individually and DM 50.000 in the aggregate need to be so scheduled):
a) any collective bargaining agreements;
b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements, (icollectively "BENEFIT ARRANGEMENTS"). Each Benefit Arrangement has been maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, laws, ordinances and regulations which are applicable to such Benefit Arrangements. No Benefit Arrangement has unfunded liabilities that, as of the Closing Date, will not be offset by insurance or fully accrued or reserved against in the Summary Financial Information. Except as required by law, no condition exists that would prevent Autodesk or any of its subsidiaries from amending or terminating any Benefit Arrangement;
c) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or director level employee, not terminable by Genius on thirty (30) or fewer days notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (law in cash or otherwise, but excluding statutory notice payments the Federal Republic of Germany and payments required by applicable Law) other jurisdictions may limit Genius' ability to any Employee of the Companyterminate employees at will;
(vd) any agreement with or plan, including without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the Acquisition and the other transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the Acquisition and the other transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixe) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of businessbusiness other than such agreements or guarantees between Genius and any of its subsidiaries, officers or directors;
(xf) any agreement, contract or commitment containing any covenant limiting the freedom of Genius to engage in any line of business or compete with any person;
g) any outstanding agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregateobligations;
(xih) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest Genius Assets not in any business enterprise outside the ordinary course of the Company’s businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiii) any agreement set forth in Section 4.11;
(xiv) any agreement providing a customer with refund rights;
(xv) any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure than trade credit agreements entered into in the ordinary course of business; ;
j) any joint marketing or development agreements (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or excluding agreements with its customers resellers, value added resellers or independent software vendors entered into in the ordinary course of business that grant nondo not permit such resellers or vendors to modify the Genius Products);
k) any distribution agreement (identifying any that contain exclusivity provisions), including distribution agreements involving Genius' subsidiary GCS Scandinavia AB;
l) any licenses, sublicenses, confidential disclosure, employee proprietary information agreements, or other agreements relating to patents, trademarks, copyrights, technical assistance, know-exclusive licenses how, inventions, trade secrets, and similar intellectual property arrangements;
m) any dealer, major account, sales, sales representative or marketing agreements, including those dealer agreements involving GCS Scandinavia AB;
n) any lease for real or personal property;
o) any authorized Training Center agreements;
p) any agreement to use Company Products that are term-limited purchase goods or are otherwise terminable by services after the Company; Closing or (v) proprietary information, confidentiality and assignment agreements with employees, consultants any agreement to purchase goods or contractorsservices prior to the Closing other than in the ordinary course of business; or
(xviq) any Lease Agreement.
agreement to produce, market and sell products related to the Genius Products. Those agreements, contracts and commitments on Schedule 2.13 which are ------------- specifically designated (bthe "CONTRACTS") The Company is shall be assigned by Genius to Autodesk at the Closing effective upon receipt of whatever third party consents or approvals as may be required under the terms of such agreements, contracts or commitments. Except for such (i) breaches, violations and defaults, (ii) alleged breaches, violations and defaults, and (iii) events that would constitute a breach, violation or default with the lapse of time, the giving of notice, or both, which are noted in material compliance with and Schedule 2.13 or which reasonably would not be expected ------------- to have a Material Adverse Effect, Genius has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or bothContract required to be set forth in Schedule 2.13. Each Material Contract is in full force and effecteffect and, and the Company except as ------------- otherwise disclosed in Schedule 2.13, is not subject to any default thereunder, nor to the Knowledge thereunder ------------- of the Company is which Genius has knowledge by any party obligated to the Company Genius pursuant to any such Material Contract subject to any material default thereunderthereto. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminateGenius has obtained, or may be terminated will use its best efforts to obtain with the reasonable assistance and cooperation of Autodesk prior to the Closing Date, all necessary consents, waivers and approvals of parties to or affected by either partyany Contract as are required to assign all rights, solely by the passage interests and benefits thereunder to Autodesk as of time or at the election of either party within 120 days after the Closing. To the Knowledge of the CompanyGenius has marked in a manner which specifically indicates each Contract requiring consent, no waiver or approval by a contracting party other than Genius in order that any rights, interests or benefits thereunder can be assigned to a Material Contract has any intention of terminating such Material Contract Autodesk in accordance with the Company or reducing the volume requirements of business such party conducts with the Company, whether as a result of the Merger or otherwisethis Agreement.
Appears in 1 contract
Agreements, Contracts and Commitments. Set forth in Section 2.16 of the Sand Disclosure Letter are a complete and correct list and summary description of all material contracts, agreements, orders, leases, licenses and other commitments (aeach a "SAND CONTRACT") of Sand at the date of this Agreement. Except as set forth in Section 4.15(a) of the Sand Disclosure Letter (specifying the appropriate subparagraph)Letter, the Company Sand is not a party to, to nor is it bound by any of the following (each, a “Material Contract”):by:
(ia) any collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(c) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment to grant with any severance officer or termination pay director level employee, or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee member of the CompanySand's Board of Directors;
(vd) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixe) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of businessbusiness other than indemnification agreements between Sand and any of its officers or directors;
(xf) any agreement, contract or commitment containing any covenant limiting the freedom of Sand to engage in any line of business or compete with any person;
(g) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregateand not cancelable without penalty;
(xih) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiiij) any joint marketing or development agreement set forth in Section 4.11;
(xiv) any agreement providing a customer excluding agreements with refund rights;
(xv) any contractsresellers, licenses and agreements to which the Company (a) grants to a third Person a license value added resellers or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements independent software vendors entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses do not permit such resellers or vendors to use Company Products modify Sand's software products);
(k) any distribution agreement (identifying any that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorscontain exclusivity provisions); or
(xvil) any Lease Agreement.
other agreement, contract or commitment which involves payment by Sand under any such agreement, contract or commitment of $50,000 or more individually and is not cancelable without penalty within thirty (b30) The Company is in material compliance with and days. Neither Sand, nor to Sand's knowledge any other party to a Sand Contract, has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any Material of such Sand Contracts in such a manner as would permit any other party to cancel or terminate any such Sand Contract, nor does the Company have Knowledge of or would permit any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no other party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseseek damages.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Insilicon Corp)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a2.16(a) of the NSC Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company NSC is not a party to, nor is it to or bound by any of the following (each, a “Material Contract”):by:
(ia) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(b) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or director level employee, not terminable by NSC on thirty (30) days notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) law may limit NSC's ability to any Employee of the Companyterminate employees at will;
(vc) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixd) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of businessbusiness other than indemnification agreements between NSC and any of its officers or directors;
(xe) any agreement, contract or commitment containing any covenant limiting the freedom of NSC to engage in any line of business or compete with any person;
(f) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate25,000 and not cancelable without penalty;
(xig) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other . business enterprise;
(xiih) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $25,000;
(xiiii) any agreement set forth in Section 4.11joint marketing or development agreement;
(xivj) any distribution agreement providing a customer with refund rights;
(xv) identifying any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorscontain 'exclusivity provisions); or
(xvik) any Lease Agreement.
other agreement, contract or commitment (bexcluding real and personal property leases) The Company which involve payment by NSC under any such agreement, contract or commitment of $25,000 or more in the aggregate and is in material compliance with and not cancelable without penalty within thirty (30) days. NSC has not materially not, nor to NSC's knowledge has any other party to a NSC 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 Material of the agreements, contracts or commitments to which NSC is a party or by which it is bound of the type described in clauses (a) through (1) above (any such agreement, contract or commitment, a "NSC Contract") in such manner as would permit any other party to cancel or terminate any such NSC Contract, nor does the Company or would permit any other party to seek damages which would reasonably be expected to have Knowledge of any event that would constitute such a breachMaterial Adverse Effect.. As to NSC, violation or default with the lapse of time, giving of notice or both. Each Material each NSC Contract is valid, binding, enforceable and in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or enforceability may be terminated limited by either party, solely by the passage bankruptcy and other similar laws and general principles of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseequity.
Appears in 1 contract
Samples: Merger Agreement (Proteonomix, Inc.)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) SCHEDULE 2.17, as of the Disclosure Letter (specifying the appropriate subparagraph)date hereof, the Company DSNC is not a party to, nor a party to whom a payment or an obligation is it owed under, is not bound by any by, and none of the following (each, a “Material Contract”):its properties are subject to:
(ia) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer, employee, consultant or member of DSNC's Board of Directors, other than those that are terminable by DSNC on no more than thirty days notice without liability or financial obligation, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) law may limit DSNC's ability to any Employee of the Companyterminate employees at will;
(vb) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon or pursuant to which any amounts may become payable (whether currently or in the future) to current or former employees, consultants, officers and directors of DSNC by the occurrence of any of the transactions contemplated by this Agreement (either alone Agreement, or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of or in connection with any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixc) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of businessbusiness other than indemnification agreements between DSNC and any of its officers or directors;
(xd) any agreement, contract or commitment relating containing any covenant limiting the freedom of DSNC to capital expenditures and involving future payments engage in excess any line of $50,000 in the aggregatebusiness or compete with any person or granting any exclusive distribution rights;
(xie) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiif) any mortgages, indentures, guarantees, loans joint marketing or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditdevelopment agreement currently in force;
(xiiig) any agreement set forth agreement, contract or commitment currently in Section 4.11;
(xiv) any agreement providing a customer with refund rights;
(xv) any contracts, licenses and agreements force to which the Company (a) grants to a third Person a license or other right in or provide source code to any material Company Intellectual Propertythird party for any product or technology, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding except for (i) non-disclosure agreements any agreement, contract or commitment pursuant to which source code is provided for maintenance of the source code or for development of modifications thereto only, and not for distribution of source or object code to third parties and (ii) any source code escrow agreement entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software business that is generally commercially available contains provisions relating to the public release of source code if DSNC ceases to do business or fails to provide appropriate maintenance;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any DSNC product;
(i) any continuing contract for the future purchase, sale or manufacture of products, material, supplies, equipment or services requiring payment to or from DSNC in an amount in excess of $25,000 per annum which is not terminable on standard 30 days' or nondiscriminatory termsless notice without cost or other liability at or at any time after the Effective Time or in which DSNC has granted or received manufacturing rights, including licenses or most favored nation pricing provisions relating to any product, group of products or territory;
(j) any contract providing for Open Source; the development of software (iiiother than contracts with consultants) contractsfor, licenses and agreements under or license of software to, DSNC, which software is used or incorporated in any DSNC Product (as defined in SECTION 2.26);
(k) any indenture, mortgage, promissory note, loan agreement, guarantee or other agreement or commitment for the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course borrowing of businessmoney, for a line of credit or for a leasing transaction of a type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorsFinancial Accounting Standards Board; or
(xvil) any Lease Agreementwritten agreement regarding intercompany loans, revenue or cost sharing, ownership or license of DSNC IP Rights, intercompany royalties or dividends or similar matters.
(b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) 4.13 of the Utah Disclosure Letter (specifying the appropriate subparagraph), the Company Schedule identifies each Utah Contract that is not a party to, nor is it bound by any in effect as of the following date of this Agreement other than the Securities Purchase Agreement (each, a an “Utah Material Contract” and collectively, the “Utah Material Contracts”):
(i) each Utah Contract relating to any employment agreement other than any agreement material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination paymentsretirement plans, or equity accelerationany other employee benefit plans or arrangements;
(ii) each Utah Contract requiring payments by Utah after the date of this Agreement in excess of $75,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any agreements with Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by Utah on ninety (90) calendar days’ or less notice without liability, except to the currently active top 20 customers extent general principles of Company Products by revenues generated in connection with wrongful termination Law may limit Utah’s, or such customers on a consolidated basis for the 12-month period ended on December 31, 2023successor’s ability to terminate employees at will;
(iii) each Utah Contract relating to any agreements with the currently active top 20 suppliers agreement or plan, including any option plan, stock appreciation right plan or stock purchase plan, any of the Company, whether benefits of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or upon in conjunction with any other event, such as termination of employment), or the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement Contemplated Transactions;
(other than as required by local Law)iv) each Utah Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(v) each Utah Contract containing (A) any covenant limiting the freedom of Utah or any of its Subsidiaries to engage in any line of business or compete with any Person, or limiting the development, manufacture, or distribution of the Utah’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision;
(vi) each Utah Contract (A) pursuant to which any collective bargaining agreements, labor union Contracts (including Person granted Utah an exclusive license under any Contract or agreement with any works council, trade unionIntellectual Property, or other labor-relations entity(B) or similar Contract (each a “Labor Agreement”)pursuant to which Utah granted any Person an exclusive license under any Utah IP Rights;
(vii) any fidelity or surety bond or completion bondeach Utah Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ix) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate;
(xi) any agreement, contract or commitment each Utah Contract relating to the disposition or acquisition of material assets or any ownership interest in any business enterprise outside Entity, in each case, involving payments in excess of $100,000 after the ordinary course date of the Company’s businessthis Agreement;
(xiiix) each Utah Contract relating to any mortgages, indentures, guaranteesloans, loans notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $100,000 or creating any material Encumbrances with respect to any assets of Utah or any loans or debt obligations with officers or directors of Utah;
(x) each Utah Contract requiring payment by or to the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Utah or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Utah or any of its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Utah or such Subsidiary or (D) any Contract to license any patent, trademark registration, service xxxx registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of Utah or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of Utah or any of its Subsidiaries, in each case, except for Utah Contracts entered into in the Ordinary Course of Business;
(xi) each Utah Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Utah in connection with the Contemplated Transactions;
(xii) each Utah Contract to which Utah or any of its Subsidiaries is a party or by which any of their assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, Utah or such Subsidiary in excess of $100,000;
(xiii) any agreement set forth in Section 4.11an Utah Real Estate Lease;
(xiv) any agreement providing a customer with refund rightsContract disclosed in or required to be disclosed in Section 4.12(b) or Section 4.12(c) of the Utah Disclosure Schedule;
(xv) any contractsother Utah Contract that is not terminable at will (with no penalty or payment) by Utah or any of its Subsidiaries, licenses and agreements to (A) which involves payment or receipt by Utah or such Subsidiary after the Company (a) grants to a third Person a license date of this Agreement under any such agreement, contract or other right commitment of more than $100,000 in or to any material Company Intellectual Propertythe aggregate, or (b) is granted by a third Person a license or other right obligations after the date of this Agreement in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into excess of $100,000 in the ordinary course of business; aggregate or (iiB) non-exclusive inbound licenses for uncustomized software that is generally commercially available material to the public on standard business or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses operations of Utah and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorsSubsidiaries taken as a whole; or
(xvi) any Lease Agreement.
(b) The Utah has delivered or made available to the Company is accurate and complete copies of all Utah Material Contracts, including all amendments thereto. There are no Utah Material Contracts that are not in material compliance with and written form. Utah has not materially nor, to Utah’s Knowledge as of the date of this Agreement, has any other party to an Utah Material Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Utah Material Contract in such manner as would permit any other party to cancel or terminate any such Utah Material Contract, nor does or would permit any other party to seek damages which would reasonably be expected to have an Utah Material Adverse Effect. As to Utah and its Subsidiaries, as of the Company have Knowledge date of any event that would constitute such a breachthis Agreement, violation or default with the lapse of time, giving of notice or both. Each each Utah Material Contract is valid, binding, enforceable and in full force and effect, and the Company is not subject to any default thereunderthe Enforceability Exceptions. No Person is renegotiating, nor or has a right pursuant to the Knowledge terms of the Company is any party obligated to the Company pursuant to any such Utah Material Contract subject to change, any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no amount paid or payable to Utah under any Utah Material Contract will terminate, or may be terminated by either party, solely by the passage any other material term or provision of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a any Utah Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseContract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) 2.14 of the Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company does not have continuing obligations under, is not a party to, nor is it bound by any of the following (each, a “Material Contract”):by:
(i) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationcollective bargaining agreements;
(ii) any agreements with or arrangements that contain any severance pay or post-employment liabilities or obligations, other than as contemplated herein or in the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for Employment and Non-Competition Agreements and the 12-month period ended on December 31, 2023Employment Agreements;
(iii) any agreements with the currently active top 20 suppliers of the Companybonus, whether of productsdeferred compensation, servicespension, royalty paymentsprofit sharing or retirement plans, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, other than oral agreements terminable at will which consist solely of agreements by the Company to grant employ any severance or termination pay or benefits (in cash or otherwiseemployee, but excluding statutory notice payments and payments required corresponding agreements by applicable Law) any employee to any Employee of conduct work for the Company;
(v) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than Agreement, except as required by local Law)provided herein;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viiivii) any lease of personal property or equipment having a value annual lease payments individually in excess of $50,000US$10,000;
(viii) any agreement of indemnification or guaranty other than in the aggregateordinary course of business;
(ix) any agreement agreement, contract or commitment containing any covenant limiting the freedom of indemnification the Company to engage in any line of business or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements to compete with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of businessany person;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 US$10,000 in the aggregate;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including any guarantees;
(xiii) any agreement set forth in Section 4.11purchase order or contract for the purchase of raw materials involving US$10,000 or more;
(xiv) any agreement providing a customer with refund rightsconstruction contracts;
(xv) any contractsdistribution, licenses and agreements to which the Company (a) grants to a third Person a license joint marketing or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; ordevelopment agreement;
(xvi) any Lease Agreementagreement, contract or commitment with any customer which, during the last two fiscal years of the Company, accounted for, or during the Company's current fiscal year is expected to account for, more than one percent (1%) of the Company's revenue or trade payables; or
(xvii) any other agreement, contract or commitment that involves US$10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any Material Contractagreement, nor does contract or commitment set forth in Section 2.14 of the Company have Knowledge of Disclosure Schedule, or (ii) any event that would constitute other agreement, contract or commitment to which it is a party or by which it is bound (any such agreement, contract or commitment, a breach, violation or default with the lapse of time, giving of notice or both"CONTRACT"). Each Material Contract is in full force and effect, effect and the Company is not subject to any default thereunder, nor to thereunder of which the Knowledge Company or any of the Company Principal Securityholders is aware by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing, all necessary consents, waivers and approvals of parties to any such Material Contract subject to any material default thereunder. Except as set forth are required in Section 4.15(b) connection with the transactions contemplated hereby and by each of the Disclosure Letter, no Material Contract will terminateRelated Agreements, or may be terminated by either party, solely by the passage of time as are required or at the election of either party within 120 days advisable in order to remain in effect without modification after the Closing. To the Knowledge consummation of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisetransactions contemplated hereby and thereby.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a3.15(a) of the Disclosure Letter Schedule (specifying the appropriate subparagraphclause to which such Contract relates), neither the Company nor any of its ERISA Affiliates is not a party to, nor or is it bound by any of the following (each, a “Material Contract”):by:
(i) (A) any employment agreement current Employee Agreement, or consulting agreement; (B) any Employee Agreement, Contract or commitment to grant any bonus, change in control, severance or other than termination-related payment (in cash or equity or otherwise) to any agreement Employee; (C) any Employee Agreement which cannot be terminated without cause or offer letter that is terminable at-will, without prior notice and without triggering liability or notice at the discretion of the Company or any obligation to provide additional benefits such ERISA Affiliate, as severance benefits, termination paymentsapplicable, or equity acceleration(D) any contractor, consulting or sales agreement, Contract, or commitment with a firm or other organization;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis agreement, policy, past practice or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, or any plan providing similar equity awards, for the 12-month period ended on December 31, 2023;
(iii) which any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights benefits will be provided or otherwiseincreased, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefits, or the accelerated vesting of benefits, upon the occurrence of any of the transactions contemplated by this Agreement (either alone or upon any events following this Agreement, contingent or otherwise), or for which the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than Agreement, except as required by local Law)the terms of this Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viiiii) any fidelity or surety bond or completion bond;
(viiiiv) any lease of of, or purchase Contract for, personal property or equipment having a value in excess of $50,00010,000 individually or $25,000 in the aggregate, or any Lease Agreements;
(ixv) any Contract of indemnification, hold harmless agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(xvi) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $50,000 10,000 individually or $25,000 in the aggregate;
(xivii) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets or any interest in any Person or business enterprise outside the ordinary course of the Company’s businessenterprise;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements Contracts or instruments relating to the borrowing of money Indebtedness or extension of credit;
(ix) any Contract with any Customer (other than customer agreements or nondisclosure agreements in all material respects identical (in substance) to the Standard Form Agreements) or Supplier (other than nondisclosure agreements in all material respects identical (in substance) to the Standard Form Agreements);
(x) any Contract relating to Indebtedness of the Company or any of its Subsidiaries;
(xi) any joint marketing or affiliate agreement;
(xii) any sales representative, original equipment manufacturer, value added, remarketer, reseller, distribution, or independent software vendor, or other Contract for sale or distribution of any Company Product or Company Intellectual Property;
(xiii) any agreement set forth nondisclosure, confidentiality or similar agreement, other than nondisclosure agreements on the Standard Form Agreements or confidentiality provisions contained in Section 4.11the Standard Form Agreements for the provision of any Company Product to end users;
(xiv) any agreement providing a customer with refund rightsother Contract that involves payments from or to the Company or any of its Subsidiaries of $10,000 individually or $25,000 in the aggregate or more and is not cancelable without penalty within thirty (30) days;
(xv) any contractsContract currently in effect with any former officer, licenses and agreements to which the Company director, member or shareholder (aor group of members or shareholders) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or;
(xvi) any Lease Agreement.power of attorney relating to the Company or any of its Subsidiaries that is currently effective and outstanding;
(xvii) any settlement or severance Contract with any present or former Employee, group of present or former Employees, or Governmental Authority;
(xviii) any Contract with any Governmental Authority;
(xix) any Contract providing for the development of any Technology or Intellectual Property Rights, independently or jointly, by or for the Company or any of its Subsidiaries;
(xx) any hedging, futures, options or other derivative Contract; or
(xxi) any Contract (A) limiting the freedom of the Company or any of its Subsidiaries to engage or participate, or compete with any other Person, in any line of business, market or geographic area, or to make use of any Company Intellectual Property, (B) pursuant to which the Company or any of its Subsidiaries grants most favored nation pricing or other similar rights or terms to any Person, (C) pursuant to which the Company or any of its Subsidiaries grants exclusive sales, distribution, marketing, license or other exclusive rights, rights of refusal, rights of first negotiation or similar rights or terms to any Person or (D) otherwise limiting the right of the Company or any of its Subsidiaries to (1) sell, distribute or manufacture any products or services, (2) purchase or otherwise obtain any services or any Software or other Technology or (3) grant reseller rights to third parties
(b) The Company is in material compliance has made available true, correct and complete copies of all Contracts required to be disclosed pursuant to Section 3.12, Section 3.13(c), Section 3.14, and this Section 3.15 (each such Contract, together with all Standard Form Agreements, Inbound Licenses and has not materially breachedOutbound Licenses, violated a “Specified Contract” and collectively, the “Specified Contracts”).
(c) Each Specified Contract to which the Company or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms its Subsidiaries is a party or conditions any its properties or assets (whether tangible or intangible) are subject is a valid and binding agreement of any Material Contract, nor does the Company have Knowledge of any event that would constitute or such a breachSubsidiary, violation enforceable against the Company or default such Subsidiary, as applicable, in accordance with the lapse of timeits terms, giving of notice or both. Each Material Contract and is in full force and effect, and effect with respect to the Company is not subject to any default thereunderor such Subsidiary, nor as applicable and, to the Knowledge of the Company is Company, any other party obligated thereto subject to (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies. Neither the Company pursuant to nor any such Material Contract subject to of its Subsidiaries has violated and or is in violation of, in any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letterrespect, no Material Contract will terminateany provision of, or may be terminated by either partyhas committed or failed to perform any act which, solely by the passage with or without notice, lapse of time or at both would constitute a material breach of, a default or an event of default under, the election of either party within 120 days after the Closingprovisions of, any Specified Contract. To the Knowledge of the Company, no Person other than the Company or any of its Subsidiaries which is party to any Specified Contract has violated or is in violation of, in any material respect, any provision of, or has committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a material breach of, a default or an event of default under the provisions of any Specified Contract. There are no facts or circumstances that would reasonably be expected to result in a violation in any material respect, of any provision of, or the failure to perform any act which, with or without notice, lapse of time or both, would constitute a material breach of, a default or an event of default under the provisions of any Specified Contract by the Company, any of its Subsidiaries or any other Person. No Specified Contract requires the obtaining of any consent, approval, notation or waiver of any third party in connection with the transactions contemplated by this Agreement, and following the Closing the Company or one of its Subsidiaries, as applicable, shall be entitled to all rights under each Specified Contract existing immediately prior to the Closing without the payment of any additional amounts or consideration (other than ongoing fees, royalties or payments that the Company or such Subsidiary would otherwise be required to pay in accordance with the terms of such Specified Contracts had the Merger not occurred). None of the Specified Contracts are subject to any claims, charges, set offs or defenses. None of the Company or any of its Subsidiaries or any of their officers, directors, or employees, by or on behalf of the Company or such Subsidiary, is party to or has ever been a party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseGovernment Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) 4.13 of the Magenta Disclosure Letter (specifying the appropriate subparagraph), the Company Schedule identifies each Magenta Contract that is not a party to, nor is it bound by any in effect as of the following date of this Agreement (each, a an “Magenta Material Contract” and collectively, the “Magenta Material Contracts”):
(i) each Magenta Contract relating to any employment agreement other than any agreement material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination paymentsretirement plans, or equity accelerationany other employee benefit plans or arrangements;
(ii) each Magenta Contract requiring payments by Magenta after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any agreements with Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by Magenta on thirty (30) calendar days’ or less notice without liability, except to the currently active top 20 customers extent general principles of Company Products by revenues generated in connection with wrongful termination Law may limit Magenta’s, or such customers on a consolidated basis for the 12-month period ended on December 31, 2023successor’s ability to terminate employees at will;
(iii) each Magenta Contract relating to any agreements with the currently active top 20 suppliers agreement or plan, including any option plan, stock appreciation right plan or stock purchase plan, any of the Company, whether benefits of products, services, royalty payments, Intellectual Property Rights which will be increased or otherwisethe vesting of benefits of which will be accelerated, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefits, or the accelerated vesting of benefits, upon the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or upon in conjunction with any other event, such as termination of employment), or the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement Contemplated Transactions;
(other than as required by local Law)iv) each Magenta Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(v) each Magenta Contract containing (A) any covenant limiting the freedom of Magenta or any of its Subsidiaries to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Magenta’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision;
(vi) each Magenta Contract (A) pursuant to which any collective bargaining agreements, labor union Contracts (including Person granted Magenta an exclusive license under any Contract or agreement with any works council, trade unionIntellectual Property, or other labor-relations entity(B) or similar Contract (each a “Labor Agreement”)pursuant to which Magenta granted any Person an exclusive license under any Magenta IP Rights;
(vii) any fidelity or surety bond or completion bondeach Magenta Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ix) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate;
(xi) any agreement, contract or commitment each Magenta Contract relating to the disposition or acquisition of material assets or any ownership interest in any business enterprise outside Entity, in each case, involving payments in excess of $100,000 after the ordinary course date of the Company’s businessthis Agreement;
(xiiix) each Magenta Contract relating to any mortgages, indentures, guaranteesloans, loans notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $100,000 or creating any material Encumbrances with respect to any assets of Magenta or any loans or debt obligations with officers or directors of Magenta;
(x) each Magenta Contract requiring payment by or to Magenta after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Magenta, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Magenta or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Magenta or any of its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Magenta or such Subsidiary or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of Magenta or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of Magenta or any of its Subsidiaries, in each case, except for Magenta Contracts entered into in the Ordinary Course of Business;
(xi) each Magenta Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Magenta in connection with the Contemplated Transactions and requiring payments by Magenta after the date in this Agreement in excess of $100,000 pursuant to its express terms;
(xii) each Magenta Contract to which Magenta or any of its Subsidiaries is a party or by which any of their assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, Magenta or such Subsidiary in excess of $100,000;
(xiii) any agreement set forth in Section 4.11Magenta Real Estate Lease;
(xiv) any agreement providing a customer with refund rights;Contract disclosed in or required to be disclosed in Section 4.12(b) or Section 4.12(c) of the Magenta Disclosure Schedule; or
(xv) any contractsother Magenta Contract that is not terminable at will (with no penalty or payment) by Magenta or any of its Subsidiaries, licenses and agreements to (A) which involves payment or receipt by Magenta or such Subsidiary after the Company (a) grants to a third Person a license date of this Agreement under any such agreement, contract or other right commitment of more than $100,000 in or to any material Company Intellectual Propertythe aggregate, or (b) is granted by a third Person a license or other right obligations after the date of this Agreement in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into excess of $100,000 in the ordinary course of business; aggregate or (iiB) non-exclusive inbound licenses for uncustomized software that is generally commercially available material to the public on standard business or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses operations of Magenta and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) any Lease AgreementSubsidiaries taken as a whole.
(b) The Magenta has delivered or made available to the Company is accurate and complete copies of all Magenta Material Contracts, including all amendments thereto. There are no Magenta Material Contracts that are not in material compliance with and written form. Magenta has not materially nor, to Magenta’s Knowledge as of the date of this Agreement, has any other party to a Magenta Material Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Magenta Material Contract in such manner as would permit any other party to cancel or terminate any such Magenta Material Contract, nor does or would permit any other party to seek damages which would reasonably be expected to have a Magenta Material Adverse Effect. As to Magenta and its Subsidiaries, as of the Company have Knowledge date of any event that would constitute such a breachthis Agreement, violation or default with the lapse of time, giving of notice or both. Each each Magenta Material Contract is valid, binding, enforceable and in full force and effect, and the Company is not subject to any default thereunderthe Enforceability Exceptions. No Person is renegotiating, nor or has a right pursuant to the Knowledge terms of the Company is any party obligated to the Company pursuant to any such Magenta Material Contract subject to change, any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no amount paid or payable to Magenta under any Magenta Material Contract will terminate, or may be terminated by either party, solely by the passage any other material term or provision of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a any Magenta Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseContract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) the Award Schedules, neither Award nor any of the Disclosure Letter (specifying the appropriate subparagraph), the Company its subsidiaries is not a party toto or is bound by: (a) any collective bargaining agreements; (b) any bonus, nor is it bound by deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any of the following other employee benefit plans or arrangements; (each, a “Material Contract”):
(ic) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or director level employee, or member of Award's Board of Directors, other than those that are terminable by Award or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to grant the extent general principles of wrongful termination law may limit Award's or any severance or termination pay or benefits of its subsidiaries' ability to terminate employees at will; (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(vd) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement Agreement; (other than as required by local Law);
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixe) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business;
business other than indemnification agreements between Award or any of its subsidiaries and any of its officers or directors; (xf) any agreement, contract or commitment containing any covenant limiting the freedom of Award or any of its subsidiaries to engage in any line of business or compete with any person; (g) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate;
(xi) 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;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiii) any agreement set forth in Section 4.11;
(xiv) any agreement providing a customer with refund rights;
(xv) any contracts, licenses 150,000 and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of businessnot cancelable without penalty; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) any Lease Agreement.
(b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.A-14
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Phoenix Technologies LTD)
Agreements, Contracts and Commitments. (aA) Except as set forth All of NetWorth's currently effective agreements, contracts and commitments are listed in Section 4.15(a) Schedule 2.12, including the name of the Disclosure Letter contracting part, date of execution and termination, and copies of all such agreements, contracts and commitments are annexed as exhibits to schedule 12.
(specifying B) Subject to the appropriate subparagraph)terms and conditions of any agreement included as part of Schedule 2.12, the Company NetWorth does not have, is not a party to, to nor is it bound by any of the following (each, a “Material Contract”):by:
(i1) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationAny collective bargaining agreements;
(ii2) Any agreements that contain any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023unpaid severance liabilities or obligations;
(iii3) Any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights other employee benefit plans or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023arrangements;
(iv4) any Any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, not terminable by NetWorth on thirty days notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) law may limit NetWorth's ability to any Employee of the Companyterminate employees at will;
(v5) Any agreement or plan, including any agreement with stock option plan, stock appreciation right plan or stock purchase plan, any Employee under of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi6) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any Any fidelity or surety bond or completion bond;
(viii7) any Any lease of personal property or equipment having a value individually in excess of $50,000in the aggregate5,000;
(ix) any 8) Any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business;
(x9) Any agreement, contract or commitment containing any covenant limiting the freedom of NetWorth to engage in any line of business or compete with any person;
(10) Any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 2,000 in any single instance or $10,000 in the aggregate;
(xi11) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xii12) any Any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or money, extension of creditcredit or guaranties;
(xiii13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any agreement set forth single instance or $10,000 or more in Section 4.11the aggregate;
(xiv14) any agreement providing a customer with refund rightsAny construction contracts;
(xv15) Any distribution, joint marketing or development agreement;
(16) Any other agreement, contract or commitment which involves $1,000 or more in any contracts, licenses and agreements to which the Company (a) grants to a third Person a license single instance or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into more than $10,000 in the ordinary course aggregate and is not cancelable without penalty upon thirty (30) days' notice, other than standard end-user licenses of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses NetWorth's products and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary informationconsistent with past practice, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi17) any Lease AgreementAny agreement that is otherwise Material to NetWorth's business.
(bC) The Company is in material compliance with and (1) NetWorth has not materially breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contractagreement, nor does the Company have Knowledge of any event that would constitute such a breach, violation contract or default with the lapse of time, giving of notice or both. Each Material Contract commitment to which it is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as bound (including those set forth in Section 4.15(b) any of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no NetWorth Schedules) in such manner as would permit any other party to a Material Contract has any intention of terminating such Material Contract with cancel or terminate the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisesame.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) 2.17 of the Company Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company is not a party to, nor is it to or bound by any of the following (each, a “Material Contract”):by:
(ia) any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(b) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or director level employee, not terminable by Company on thirty (30) days notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) may limit Company’s ability to any Employee of the Companyterminate employees at will;
(vc) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixd) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business, including any indemnification agreements between Company and any of its officers or directors;
(xe) any agreement, contract or commitment containing any covenant limiting the freedom of Company to engage in any line of business or compete with any person;
(f) any license, agreement, contract or commitment relating to any Material Company IP Right;
(g) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregateand not cancelable without penalty;
(xih) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiiij) any agreement set forth in Section 4.11joint marketing or development agreement;
(xivk) any distribution agreement providing a customer with refund rights;
(xv) identifying any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorscontain exclusivity provisions); or
(xvil) any Lease Agreement.
other agreement, contract or commitment (bexcluding real and personal property leases) The which involve an annual payment by Company is under any such agreement, contract or commitment of $50,000 or more in material compliance with the aggregate and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(bcancelable without penalty within thirty (30) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisedays.
Appears in 1 contract
Samples: Merger Agreement (Vaxgen Inc)
Agreements, Contracts and Commitments. (aA) Except as set forth All of Lorilei's currently effective agreements, contracts and commitments are listed in Section 4.15(a) Schedule 2.12, including the name of the Disclosure Letter contracting part, date of execution and termination, and copies of all such agreements, contracts and commitments are annexed as exhibits to schedule 12.
(specifying the appropriate subparagraph)B) Xxxxxxx does not have, the Company is not a party to, to nor is it bound by any of the following (each, a “Material Contract”):by:
(i1) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationAny collective bargaining agreements;
(ii2) Any agreements that contain any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023unpaid severance liabilities or obligations;
(iii3) Any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights other employee benefit plans or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023arrangements;
(iv4) any Any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, not terminable by Xxxxxxx on thirty days notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) law may limit Lorilei's ability to any Employee of the Companyterminate employees at will;
(v5) Any agreement or plan, including, without limitation, any agreement with stock option plan, stock appreciation right plan or stock purchase plan, any Employee under of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi6) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any Any fidelity or surety bond or completion bond;
(viii7) any Any lease of personal property or equipment having a value individually in excess of $50,000in the aggregate2,000;
(ix) any 8) Any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business;
(x9) Any agreement, contract or commitment containing any covenant limiting the freedom of Xxxxxxx to engage in any line of business or compete with any person;
(10) Any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 2,000 in any single instance or $10,000 in the aggregate;
(xi11) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xii12) any Any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or money, extension of creditcredit or guaranties;
(xiii13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any agreement set forth single instance or $10,000 or more in Section 4.11the aggregate;
(xiv14) any agreement providing a customer with refund rightsAny construction contracts;
(xv15) Any distribution, joint marketing or development agreement;
(16) Any other agreement, contract or commitment which involves $1,000 or more in any contracts, licenses and agreements to which the Company (a) grants to a third Person a license single instance or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into more than $10,000 in the ordinary course aggregate and is not cancelable without penalty within thirty (30) days other than standard end-user licenses of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses Lorilei's products and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary informationconsistent with past practice, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi17) any Lease AgreementAny agreement which is otherwise material to Lorilei's business.
(b1) The Company is in material compliance with and Xxxxxxx has not materially breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contractagreement, nor does contract or commitment to which it is bound (including those set forth in any of Xxxxxxx Schedules) in such manner as would permit any other party to cancel or terminate the Company have Knowledge same.
(2) Each agreement, contract or commitment required to be set forth in any of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract Xxxxxxx Schedules is in full force and effecteffect (assuming such agreement, contract or commitment has been duly authorized, executed and delivered by the Company other party or parties thereto) and, except as otherwise disclosed or defaults fully remedied or resolved, is not subject to any material default thereunder, nor to the thereunder of which Xxxxxxx has Knowledge of the Company is by any party obligated to the Company Xxxxxxx pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisethereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) 2.17 of the Raven Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company neither Raven nor any of its subsidiaries is not a party to, nor to or is it bound by any of the following (each, a “Material Contract”):by:
(ia) any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(b) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or director level employee, not terminable by Raven or any of its subsidiaries on thirty (30) days notice without liability, except to grant the extent general principles of wrongful termination law may limit Raven's or any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) of its subsidiaries' ability to any Employee of the Companyterminate employees at will;
(vc) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixd) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of businessbusiness other than indemnification agreements between Raven or any of its subsidiaries and any of its officers or directors;
(xe) any agreement, contract or commitment containing any covenant limiting the freedom of Raven or any of its subsidiaries to engage in any line of business or compete with any person;
(f) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregateand not cancelable without penalty;
(xig) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiih) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiiii) any agreement set forth in Section 4.11joint marketing or development agreement;
(xivj) any distribution agreement providing a customer with refund rights;
(xv) identifying any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorscontain exclusivity provisions); or
(xvik) any Lease Agreement.
other agreement, contract or commitment (bexcluding real and personal property leases) The Company which involve payment by Raven or any of its subsidiaries under any such agreement, contract or commitment of $50,000 or more in the aggregate and is in material compliance with and not cancelable without penalty within thirty (30) days. Neither Raven nor any of its subsidiaries, nor to Raven's knowledge any other party to a Raven Contract (as defined below), has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material of the agreements, contracts or commitments to which Raven is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a "Raven Contract") in such manner as would permit any other party to cancel or terminate any such Raven Contract, nor does the Company or would permit any other party to seek damages, in either case as would reasonably be expected to have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or bothMaterial Adverse Effect on Raven. Each Material Raven Contract is valid, binding, enforceable and in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Vaxgen Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 4.15(a2.12(a) of the Disclosure Letter (specifying the appropriate subparagraph)Company Schedule, the Company does not have, is not a party to, to nor is it bound by any of the following (each, a “Material Contract”):by:
(i) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationcollective bargaining agreements;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12or arrangements that contain any severance pay or post-month period ended on December 31, 2023employment liabilities or obligations;
(iii) any agreements with the currently active top 20 suppliers of the Companybonus, whether of productsdeferred compensation, servicespension, royalty paymentsprofit sharing or retirement plans, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment to grant any severance with an employee or termination pay individual consultant or benefits (in cash salesperson or otherwiseconsulting or sales agreement, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Companycontract or commitment with a firm or other organization;
(v) any agreement with or plan (including, any Employee under stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence Ancillary Agreements or the value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)hereby or thereby;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viiivii) any lease of real or personal property or equipment having a value individually in excess of $50,000in the aggregate25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement agreement, contract or commitment containing any covenant limiting the freedom of indemnification the Company to engage in any line of business or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements to compete with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of businessany person;
(x) any agreement, contract or commitment relating to capital expenditures and or involving future payments in excess of $50,000 in the aggregate25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any agreement set forth purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in Section 4.11the ordinary course of business;
(xiv) any agreement providing a customer with refund rightsconstruction contracts;
(xv) any contractsdistribution, licenses and agreements to which the Company (a) grants to a third Person a license joint marketing, licensing or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorsdevelopment agreement; or
(xvi) any Lease Agreementother agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company is in material compliance with and Schedule, the Company has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both”). Each Material Contract is in full force and effect, effect and the Company is not subject to any default thereunder, nor to the Knowledge thereunder of which the Company is has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any such Material Contract subject to any material default thereunder. Except as set forth are required in Section 4.15(b) of connection with the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely Merger and the other transactions contemplated hereby and by the passage of time Ancillary Agreements, including all such consents, approvals or at waivers necessary to validly transfer and assign all such Contracts to the election of either party within 120 days after Surviving Corporation (the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise“Requisite Consents”).
Appears in 1 contract
Samples: Merger Agreement (Valueclick Inc/Ca)
Agreements, Contracts and Commitments. Predix and its subsidiaries are not parties to or bound by:
(a) Except except as set forth described in Section 4.15(a2.12(a) of the Predix Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company is not a party toany bonus, nor is it bound by any of the following (eachdeferred compensation, a “Material Contract”):
(i) any employment agreement other than any agreement incentive compensation, pension, profit-sharing or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination paymentsretirement plans, or equity accelerationany other employee benefit plans or arrangements;
(iib) any agreements with the currently active top 20 customers of Company Products by revenues generated except as described in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iiiSection 2.12(a) any agreements with the currently active top 20 suppliers of the CompanyPredix Disclosure Schedule, whether of products, services, royalty payments, Intellectual Property Rights any employment or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or director level employee, not terminable by Predix or its subsidiaries on thirty (30) days notice without liability, except to grant any severance the extent general principles of wrongful termination law may limit Predix’s or termination pay or benefits its subsidiaries’ ability to terminate employees at will; Table of Contents
(c) except as described in cash or otherwise, but excluding statutory notice payments and payments required by applicable LawSection 2.12(a) to any Employee of the Company;
(v) Predix Disclosure Schedule, any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixd) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of businessbusiness other than indemnification agreements between Predix or its subsidiaries and any of their officers or directors;
(xe) any agreement, contract or commitment containing any covenant limiting the freedom of Predix or its subsidiaries to engage in any line of business or compete with any person;
(f) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate25,000 and not cancelable without penalty;
(xig) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiih) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $25,000;
(xiiii) any agreement set forth in Section 4.11joint marketing or development agreement;
(xivj) any distribution agreement providing a customer with refund rights;
(xv) identifying any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorscontain exclusivity provisions); or
(xvik) any Lease Agreement.
other agreement, contract or commitment (bexcluding real and personal property leases) The Company is which involve payment by Predix or its subsidiaries under any such agreement, contract or commitment of $25,000 or more in material compliance with the aggregate. Predix and its subsidiaries have not, nor to Predix’s or its subsidiaries’ knowledge has not materially any other party to a Predix 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 Predix or its subsidiaries are a party or by which they are bound of the type described in clauses (a) through (k) above (any Material such agreement, contract or commitment, a “Predix Contract”) in such manner as would permit any other party to cancel or terminate any such Predix Contract, nor does the Company or would permit any other party to seek damages which would reasonably be expected to have Knowledge of any event that would constitute such a breachMaterial Adverse Effect on Predix. As to Predix and its subsidiaries, violation or default with the lapse of time, giving of notice or both. Each Material each Predix Contract is valid, binding, enforceable and in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or enforceability may be terminated limited by either party, solely by the passage bankruptcy and other similar laws and general principles of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseequity.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) the Parent Schedules, neither Parent nor any of the Disclosure Letter (specifying the appropriate subparagraph), the Company is not a party toits subsidiaries has, nor is it a party to nor is it bound by any of the following (each, a “Material Contract”):by:
(ia) any collective bargaining agreements,
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements,
(c) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or director level employee, not terminable by Parent on thirty (30) days notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) law may limit Parent's ability to any Employee of the Company;terminate employees at will,
(vd) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law);Agreement,
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixe) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business;business other than such agreements or guarantees between Parent and any of its subsidiaries, officers or directors,
(xf) any agreement, contract or commitment containing any covenant limiting the freedom of Parent to engage in any line of business or compete with any person,
(g) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate;200,000,
(xih) 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,
(xiii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;,
(xiiij) any joint marketing or development agreement set forth in Section 4.11;
(xiv) any agreement providing a customer excluding agreements with refund rights;
(xv) any contractsresellers, licenses and agreements to which the Company (a) grants to a third Person a license value added resellers or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements independent software vendors entered into in the ordinary course of business; business that do not permit such resellers or vendors to modify Parent's software products),
(iik) non-exclusive inbound licenses for uncustomized software any distribution agreement (identifying any that is generally commercially available to contain exclusivity provisions),
(l) any lease of real property involving the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided payment by the Company Parent of $250,000 per year or more in any individual case,
(m) any agreement or commitment with any affiliate of Parent, or
(n) any other agreement, contract or commitment (including personal property leases) which involves payment by Parent of $250,000 or more and is to contractors not cancelable without penalty within thirty (30) days or vendors, (other than agreements for the provision by the Parent of services entered into in the ordinary course of its business, for the purpose of providing products or services ) that involves payment to the Company; (iv) Company’s contracts, licenses Parent of $250,000 or agreements with its customers more in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) any Lease Agreementindividual case.
(b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) the Miami Subs Schedules, neither Miami Subs nor any of the Disclosure Letter (specifying the appropriate subparagraph), the Company its subsidiaries is not a party to, nor to or is it bound by any of the following (each, a “Material Contract”):by:
(ia) any collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(c) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or director level employee, not terminable by Miami Subs or any of its subsidiaries on thirty days notice without liability, except to grant the extent general principles of wrongful termination law may limit Miami Subs's or any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) of its subsidiaries' ability to any Employee of the Companyterminate employees at will;
(vd) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixe) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of businessbusiness other than indemnification agreements between Miami Subs or any of its subsidiaries and any of its present or former officers or directors;
(x) xxx agreement, contract or commitment containing any covenant limiting the freedom of Miami Subs or any of its subsidiaries to engage in any line of business or compete with any person;
(g) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate100,000 and not cancelable without penalty;
(xih) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiiij) any agreement set forth in Section 4.11joint marketing or development agreement;
(xivk) any distribution agreement providing a customer with refund rights;
(xv) identifying any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorscontain exclusivity provisions); or
(xvil) any Lease Agreement.
other agreement, contract or commitment (bexcluding real and personal property leases) The Company which involve payment by Miami Subs or any of its subsidiaries under any such agreement, contract or commitment of $100,000 or more in the aggregate and is in material compliance with and not cancelable without penalty within thirty (30) days. Neither Miami Subs nor any of its subsidiaries, nor to Miami Subs's knowledge any other party to any Miami Subs Contract (as defined below), has not materially breached, violated or defaulted under, or received notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any Material of the agreements, contracts or commitments to which Miami Subs is a party or by which it is bound of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, a "Miami Subs Contract") in such a manner as would permit any other party to cancel or terminate any such Miami Subs Contract, nor does the Company have Knowledge of or would permit any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no other party to seek damages, which cancellation, termination or damages would have a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseAdverse Effect on Miami Subs.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) the Metraplex Schedules, neither Metraplex nor any of the Disclosure Letter (specifying the appropriate subparagraph), the Company its subsidiaries is not a party to, nor to or is it bound by any of the following (each, a “Material Contract”):by:
(ia) any collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(c) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or director level employee, not terminable by Metraplex or any of its subsidiaries on thirty (30) days notice without liability, except to grant the extent general principles of wrongful termination law may limit Metraplex's or any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) of its subsidiaries' ability to any Employee of the Companyterminate employees at will;
(vd) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law);Agreement; except that the termination of the Metraplex ESOP will result in 100% vesting.
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixe) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of businessbusiness other than indemnification agreements between Metraplex or any of its subsidiaries and any of its officers or directors;
(xf) any agreement, contract or commitment containing any covenant limiting the freedom of Metraplex or any of its subsidiaries to engage in any line of business or compete with any person;
(g) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate10,000 and not cancelable without penalty;
(xih) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiiij) any agreement set forth in Section 4.11joint marketing or development agreement;
(xivk) any distribution agreement providing a customer with refund rights;
(xv) identifying any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorscontain exclusivity provisions); or
(xvil) any Lease Agreement.
other agreement, contract or commitment (bexcluding real and personal property leases) The Company which involve payment by Metraplex or any of its subsidiaries under any such agreement, contract or commitment of $10,000 or more in the aggregate and is in material compliance with and not cancelable without penalty within thirty (30) days. Neither Metraplex nor any of its subsidiaries, nor to Metraplex's knowledge any other party to a Metraplex Contract (as defined below), has not materially breached, violated or defaulted under, or received notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any Material of the agreements, contracts or commitments to which Metraplex is a party or by which it is bound of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, an "Metraplex Contract") in such a manner as would permit any other party to cancel or terminate any such Metraplex Contract, nor does the Company have Knowledge of or would permit any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no other party to seek damages, which would have a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseAdverse Effect on Metraplex.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Herley Industries Inc /New)
Agreements, Contracts and Commitments. Bio-Quant is not party to or bound by:
(a) Except except as set forth described in Section 4.15(a2.12(a) of the Bio-Quant Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company is not a party toany bonus, nor is it bound by any of the following (eachdeferred compensation, a “Material Contract”):
(i) any employment agreement other than any agreement incentive compensation, pension, profit-sharing or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination paymentsretirement plans, or equity accelerationany other employee benefit plans or arrangements;
(iib) any agreements with the currently active top 20 customers of Company Products by revenues generated except as described in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iiiSection 2.12(a) any agreements with the currently active top 20 suppliers of the CompanyBio-Quant Disclosure Schedule, whether of products, services, royalty payments, Intellectual Property Rights any employment or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or employee, not terminable by Bio-Quant on thirty (30) days notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) law may limit Bio-Quant’s ability to any Employee of the Companyterminate employees at will;
(vc) except as described in Section 2.12(a) of the Bio-Quant Disclosure Schedule, any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixd) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of businessbusiness other than indemnification agreements between Bio-Quant and any of their officers or directors;
(xe) any agreement, contract or commitment containing any covenant limiting the freedom of Bio-Quant to engage in any line of business or compete with any person;
(f) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate25,000 and not cancelable without penalty;
(xig) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiih) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $25,000;
(xiiii) any agreement set forth in Section 4.11joint marketing or development agreement;
(xivj) any distribution agreement providing a customer with refund rights(identifying any that contain exclusivity provisions);
(xvk) any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to contract with any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorsGovernmental Authority; or
(xvil) any Lease Agreement.
other agreement, contract or commitment (bexcluding real and personal property leases) The Company is which involve payment by or to Bio-Quant under any such agreement, contract or commitment of $50,000 or more in material compliance with and the aggregate. Bio-Quant has not materially not, nor to Bio-Quant’s knowledge has any other party to a Bio-Quant 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 Bio-Quant is a party or by which it is bound of the type described in clauses (a) through (l) above (any Material such agreement, contract or commitment, a “Bio-Quant Contract”) in such manner as would permit any other party to cancel or terminate any such Bio-Quant Contract, nor does the Company or would permit any other party to seek damages which would reasonably be expected to have Knowledge of any event that would constitute such a breachMaterial Adverse Effect on Bio-Quant. As to Bio-Quant, violation or default with the lapse of time, giving of notice or both. Each Material each Bio-Quant Contract is valid, binding, and enforceable and in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or enforceability may be terminated limited by either party, solely by the passage bankruptcy and other similar laws and general principles of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseequity.
Appears in 1 contract
Samples: Merger Agreement (Nexmed Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) 2.17 of the Pentose Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company Pentose is not a party to, nor to or is it bound by any of the following (each, a “Material Contract”):by:
(ia) any collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(c) any employment agreement other than or consulting agreement, contract or commitment with any agreement officer or offer letter that is director level employee, not terminable at-by Pentose on thirty (30) days notice without liability, except to the extent general principles of wrongful termination law may limit Pentose's ability to terminate employees at will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(iid) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31benefit or compensation agreement or plan, 2023including, without limitation, any stock option plan, stock appreciation right plan;
(iiie) any agreement of indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements with the currently active top 20 suppliers between Pentose and any of the Company, whether of products, services, royalty payments, Intellectual Property Rights its officers or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023directors;
(ivf) any agreement, contract or commitment containing any covenant limiting the freedom of Pentose to grant engage in any severance line of business or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to compete with any Employee of the Companyperson;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefits, or the accelerated vesting of benefits, upon the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or which provides for benefits with a value which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law);
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ix) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(xg) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregateand not cancelable without penalty;
(xih) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiiij) any agreement set forth in Section 4.11joint marketing or development agreement;
(xivk) any distribution agreement providing a customer with refund rights;
(xv) identifying any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorscontain exclusivity provisions); or
(xvil) any Lease Agreement.
other agreement, contract or commitment (bincluding real and personal property leases) The Company which involve payment by Pentose under any such agreement, contract or commitment of $50,000 or more in the aggregate and is in material compliance with and not cancelable without penalty within thirty (30) days. Neither Pentose, nor to Pentose's knowledge any other party to a Pentose Contract (as defined below), has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material of the agreements, contracts or commitments to which Pentose is a party or by which it is bound of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, a "Pentose Contract") in such manner as would permit any other party to cancel or terminate any such Pentose Contract, nor does the Company have Knowledge of or would permit any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no other party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseseek damages.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a2.13(a) of the Company Disclosure Letter (specifying Schedule lists the appropriate subparagraph), the following Company is not a party to, nor is it bound by any Contracts in effect as of the following date of this Agreement (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract relating to any employment agreement other than any agreement material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination paymentsretirement plans, or equity accelerationany other employee benefit plans or arrangements;
(ii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $150,000 per year pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any agreements with Person, including any employee, consultant or independent contractor, or entity providing employment-related, consulting or independent contractor services, not terminable by the currently active top 20 customers Company or its Subsidiaries on 90 calendar days’ or less notice without liability, except to the extent general principles of Company Products by revenues generated in connection with wrongful termination law may limit the Company’s, its Subsidiaries’ or such customers on a consolidated basis for the 12-month period ended on December 31, 2023successor’s ability to terminate employees at will;
(iii) each Company Contract relating to any agreements with the currently active top 20 suppliers agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the Company, whether benefits of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or upon in conjunction with any other event, such as termination of employment), or the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement Contemplated Transactions;
(other than as required by local Law)iv) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(v) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any most-favored pricing arrangement, (C) any exclusivity provision, or (D) any non-solicitation provision;
(vi) any collective bargaining agreements, labor union Contracts (including any each Company Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”)relating to capital expenditures and requiring payments after the date of this Agreement in excess of $250,000 pursuant to its express terms and not cancelable without penalty;
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ix) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate;
(xi) any agreement, contract or commitment each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any business enterprise outside the ordinary course of the Company’s businessEntity;
(xiiviii) each Company Contract relating to any mortgages, indentures, guaranteesloans, 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 $250,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company;
(xiiiix) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement set forth in Section 4.11;
involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company; (xivC) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement providing a customer with refund rights;
(xv) currently in force under which the Company has continuing obligations to develop or market any contractsproduct, licenses and agreements technology or service, or any agreement pursuant to which the Company (a) grants has continuing obligations to a third Person a license or other right in or to develop any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendorswill not be owned, in the ordinary course of businesswhole or in part, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (vD) proprietary informationany Contract to license any third party to manufacture or produce any product, confidentiality and assignment agreements service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(x) each Company Contract with employeesany Person, consultants including any financial advisor, broker, finder, investment banker or contractorsother Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(xi) each Company Real Estate Lease; or
(xvixii) any Lease Agreementother Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $250,000 in the aggregate, or obligations after the date of this Agreement in excess of $250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company is has delivered or made available to Nautilus accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in material compliance with and Section 2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. Neither the Company nor any of its Subsidiaries has, nor to the Company’s Knowledge, as of the date of this Agreement has not materially any other party to a Company Material Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, nor does or would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Company have Knowledge and its Subsidiaries, as of any event that would constitute such a breachthe date of this Agreement, violation or default with the lapse of time, giving of notice or both. Each each Company Material Contract is valid, binding, enforceable and in full force and effect, and the Company is not subject to any default thereunderthe Enforceability Exceptions. No Person is renegotiating, nor or has a right pursuant to the Knowledge terms of the any Company is Material Contract to change, any party obligated material amount paid or payable to the Company pursuant to under any such Company Material Contract subject to or any other material default thereunder. Except as set forth in Section 4.15(b) term or provision of the Disclosure Letter, no any Company Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseContract.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as disclosed in Section 3.13 of the Disclosure Schedule, none of the Companies has or is a party to:
(a) Except as set forth in Section 4.15(a) of the Disclosure Letter (specifying the appropriate subparagraph), the Company is not a party to, nor is it bound by any of the following (each, a “Material Contract”):collective bargaining agreements;
(ib) any agreements that contain any unpaid severance liabilities or obligations;
(c) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(d) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any 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 such Company within thirty (30) days without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) law may limit such Company's ability to any Employee of the Companyterminate employees at will;
(ve) agreement or plan, including, without limitation, any agreement with stock option plan, stock appreciation right plan or stock purchase plan, any Employee under of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viif) any fidelity or surety bond or completion bond;
(viiig) any lease of personal property or equipment having a value individually in excess of $50,000in the aggregate10,000;
(ixh) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business;
(xi) any agreement, contract or commitment containing any covenant limiting the freedom of such Company to engage in any line of business or compete with any person;
(j) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate10,000;
(xik) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company’s businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiil) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (h) hereof;
(xiiim) any agreement set forth in Section 4.11purchase order or contract for the purchase of raw materials or acquisition of assets involving $10,000 or more;
(xivn) any agreement providing a customer with refund rightsconstruction contracts;
(xvo) any contractsdistribution, licenses joint marketing or development agreements;
(p) any other agreement, contract or commitment which involves $5,000 or more and agreements to which the Company is not cancelable without penalty within thirty (a30) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorsdays; or
(xviq) any Lease Agreement.
(b) The Company agreement which is in otherwise material compliance with and to such Company's business. None of the Companies has not materially breached, violated or defaulted under, or received notice in writing any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contractmaterial agreement, nor does the Company have Knowledge of contract or commitment to which it is bound in such manner as would permit any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no other party to a Material Contract has any intention of terminating such Material Contract with cancel or terminate the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisesame.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Bankers Insurance Group Inc)
Agreements, Contracts and Commitments. (aA) Except as set forth specifically disclosed in Section 4.15(a) of the Disclosure Letter (specifying the appropriate subparagraph)Schedule 2.12, the Company Trilogy does not have, is not a party to, to nor is it bound by any of the following (each, a “Material Contract”):by:
(i1) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationAny collective bargaining agreements;
(ii2) Any agreements that contain any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023unpaid severance liabilities or obligations;
(iii3) Any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights other employee benefit plans or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023arrangements;
(iv4) any Any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, not terminable by Trilogy on thirty days notice without liability, except to grant any severance or the extent general principles of wrongful termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) law may limit Trilogy's ability to any Employee of the Companyterminate employees at will;
(v5) Agreement or plan, including, without limitation, any agreement with stock option plan, stock appreciation right plan or stock purchase plan, any Employee under of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi6) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any Any fidelity or surety bond or completion bond;
(viii7) any Any lease of personal property or equipment having a value individually in excess of $50,000in the aggregate2,000;
(ix) any 8) Any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of business;
(x9) Any agreement, contract or commitment containing any covenant limiting the freedom of Trilogy to engage in any line of business or compete with any person;
(10) Any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 10,000 in any single instance or $20,000 in the aggregate;
(xi11) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xii12) any Any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in Schedule 2.12(A)(12) hereof;
(xiii13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any agreement set forth single instance or $20,000 or more in Section 4.11the aggregate;
(xiv14) any agreement providing a customer with refund rightsAny construction contracts;
(xv15) Any distribution, joint marketing or development agreement;
(16) Any other agreement, contract or commitment which involves $2,000 or more in any contracts, licenses and agreements to which the Company (a) grants to a third Person a license single instance or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into more than $45,000 in the ordinary course aggregate and is not cancelable without penalty within thirty (30) days other than standard end-user licenses of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses Trilogy's products and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary informationconsistent with past practice, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi17) any Lease AgreementAny agreement which is otherwise material to Trilogy's business.
(bB) The Company is in material compliance with and (1) Trilogy has not materially breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contractagreement, nor does the Company have Knowledge of any event that would constitute such a breach, violation contract or default with the lapse of time, giving of notice or both. Each Material Contract commitment to which it is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as bound (including those set forth in Section 4.15(bany of Trilogy Schedules) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no in such manner as would permit any other party to a Material Contract has any intention of terminating such Material Contract with cancel or terminate the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisesame.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth for Contracts specifically identified in Section 4.15(a3.11(a) of the Disclosure Letter Schedule (specifying referring to the appropriate subparagraphsub-section of this Section), no member of the Company Group is not a party to, nor is it bound by any of the following (each, a “Material Contract”):
(i) management, employment, severance, consulting, relocation, repatriation, expatriation, or any employment agreement other than any agreement Contract providing for compensation or offer letter benefits to current employees (each, an “Employment Agreement”), and Contracts with individual service providers, in each case which are not cancelable by the member of the Company Group party to such Contracts on notice of 60 days or less without penalty or further payment or which include payments of a base salary that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationin excess of $150,000 per annum;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023Employee Plan;
(iii) Contract pursuant to which any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefitsthereunder will be increased, or the accelerated vesting thereunder of benefitssuch benefits will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone Agreement, or upon the occurrence value of any additional subsequent events) or which provides for benefits with a value which thereunder will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(viiv) any collective bargaining agreements, labor union Contracts (including any Contract lease or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease sublease of personal or real property or equipment having a value in excess of $50,000200,000 individually or $350,000 in the aggregate, per annum;
(v) Contract of indemnification or guaranty, other than any Contract of indemnification entered into in connection with the sale or license or manufacturing of products or services in the ordinary course of business or indemnification of any officers and directors of any Company Member, consistent with past practice;
(vi) Contract relating to capital expenditures (within the meaning of GAAP) and involving future payments in connection with such expenditures to or from any member of the Company Group in excess of $250,000 individually or $500,000 in the aggregate;
(ixvii) any Contract that has a term of more than one year and that may not be terminated by the Company Group without penalty within 60 days after the delivery of a termination notice, except for confidentiality or nondisclosure agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into by any member of the Company Group in the ordinary course of businessbusiness consistent with past practice;
(xviii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate;
(xi) 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;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contract relating to the borrowing of money or extension of credit;
(xiii) any agreement set forth , in Section 4.11;
(xiv) any agreement providing a customer with refund rights;
(xv) any contracts, licenses and agreements to which the Company (a) grants to a third Person a license excess of $100,000 individually or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course aggregate, and other than trade payables incurred and extensions of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available credit to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers granted in the ordinary course of business that grant nonconsistent with past practice;
(ix) research and/or development Contracts under which any member of the Company Group has continuing obligations to jointly research and/or develop any material Intellectual Property;
(x) Contract for a joint venture, partnership or similar arrangement;
(xi) Material Company IP Agreement;
(xii) any Contract required to be referred to under Section 3.7 hereof;
(xiii) Contract with any shareholder or affiliate of any member of the Company Group, other than an Employment Agreement;
(xiv) stockholder agreements, voting agreements, buy-exclusive licenses sell agreements and other Contracts granting any Person any rights to use exercise control over any member of the Company Products that are term-limited Group, or are the capital stock of any member of the Company Group, and all such Contracts to which although no member of the Company Group is a party or otherwise terminable by bound, the Company; or existence of which is the Company has Knowledge of;
(vxv) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; orContract granting a Lien upon any material asset of any member of the Company Group;
(xvi) Contracts with each of the customers, distributors or resellers that were the five largest costumers, distributors or resellers of the Company Group in 2005 in terms of the amount of revenues in each of the Company Group’s product lines (each, a “Material Customer”);
(xvii) Contracts with each of the suppliers that were either the five largest suppliers of the Company Group in 2005 in terms of the total value of goods and services purchased by the Company Group, or that are sole suppliers for material goods and services required for the conduct of the business in each of the Company Group’s product lines (each, a “Material Supplier”).
(xviii) Contract for the (i) disposition or acquisition of any Lease Agreementmaterial asset (other than licenses in the ordinary course of business consistent with past practice), (ii) for the grant of any preferential rights to purchase any material asset, (iii) for the grant of any exclusive right to use any material asset, or (iv) requiring the consent of any party to the transfer of any material asset;
(xix) Material Contract with any Governmental Authority; and
(xx) Material currency exchange, interest rate exchange, commodity exchange or similar Contract.
(b) The All Material Contracts are valid, binding and in full force and effect and to the Company’s Knowledge, are enforceable against the applicable member of the Company Group party to such Material Contracts and, to the knowledge of the Company, the other party thereto, in accordance with their terms. Each member of the Company Group has performed and is in material compliance with and has not materially breachedall material obligations required to be performed by it or complied with to date under the Material Contracts, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any except as disclosed in Section 3.8(b) of the terms Disclosure Schedule. Other than as listed in Section 3.11(b) of the Disclosure Schedule, to the Company’s Knowledge, there exists no default or conditions event of default or event, occurrence, condition or act, which, with the giving of notice, the lapse of time or the happening of any other event or condition, would (i) become a default or event of default under any Material Contract or (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, nor does (B) the right to a rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of any obligation of the Company have Knowledge or any of its Subsidiaries under any Material Contract, or (D) the right to cancel, terminate or modify any Material Contract, which has resulted in the last 12 months, or is reasonably likely to result, in a material impact on any of the Company Group’s product lines. To the Company’s Knowledge, no member of the Company Group has received any written notice regarding any material violation or material breach of, material default under, or intention to cancel or modify any Material Contract, which has resulted in the last 12 months, or is reasonably likely to result, in a material impact on any of the Company Group’s product lines. Following the Closing, the Company will be permitted to exercise all of its rights under the Material Contracts without the payment of any event that additional amounts or consideration other than ongoing fees, royalties or payments which the Company would constitute otherwise be required to pay pursuant to the terms of such Material Contracts had the transactions contemplated by this Agreement not occurred. Complete and correct copies of all Material Contracts have been made available to the Investors by the Company.
(c) Section 3.11(c) of the Disclosure Schedule sets forth all Material Contracts with change-in-control or other similar provisions which would, or would reasonably be expected to, void such Contract or to cause the termination thereof, a breach, violation or default with the lapse thereunder or any other change, acceleration, triggering of time, giving of notice rights or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor modification to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letterterms thereof, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwisetransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Lumenis LTD)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) of the Disclosure Letter (specifying the appropriate subparagraph), the Company is not a party to, nor is it bound by any of the following (each, a “Material Contract”):
(i) any employment agreement other than any agreement or offer letter that is terminable at-at- will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement with any Employee under which the Company has any ongoing liability which provides for the increase of benefits, or the accelerated vesting of benefits, upon the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or which provides for benefits with a value which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law);
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ix) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate;
(xi) 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;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiii) any agreement set forth in Section 4.11;
(xiv) any agreement providing a customer with refund rights;
(xv) any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or
(xvi) any Lease Agreement.
(b) The Company is in material compliance with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Samples: Merger Agreement
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) 2.17 of the Disclosure Letter Schedule (specifying the appropriate subparagraphparagraph), neither the Company nor any of its Subsidiaries is not a party to, nor is it or bound by any of the following (each, a “Material Contract”):by:
(i) any employment agreement or consulting agreement, contract or commitment with an employee or individual consultant or salesperson (other than any agreement or offer letter that is terminable at-"at will" employment agreements entered into in the ordinary course of business), without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;employee, or any consulting or sales agreement, contract, or commitment with a firm or other organization; EXECUTION VERSION
(vii) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(viiiii) any fidelity or surety bond or completion bond;
(viiiiv) any lease of personal property or equipment having a value in excess of $50,000in the aggregateproperty;
(ixv) any lease of real property;
(vi) except as provided in Section 2.17(a)(vii) below, any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of business;
(xvii) any agreement of indemnification under any End User Agreement that (A) does not eliminate the Company's or its Subsidiaries' potential liability for consequential or incidental damages or (B) place a cap on the potential liability of the Company or its Subsidiaries under such agreement;
(viii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 10,000 individually or $10,000 in the aggregate;
(xiix) 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 or its Subsidiaries' business;
(xiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xi) any purchase order or contract for the purchase of materials involving in excess of $10,000 individually;
(xii) any construction contracts;
(xiii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement set forth in Section 4.11or similar agreement;
(xiv) any agreement providing a customer with refund rightsagreement, contract or commitment to alter the Company's interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xv) any contractssales representative, licenses and agreements to which original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the CompanySubsidiaries; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; orEXECUTION VERSION
(xvi) other than customer purchase orders, any Lease Agreementother agreement, contract or commitment that involves $10,000 individually or $10,000 in the aggregate or more with respect to any Person and is not cancelable without penalty within 30 days.
(b) The Except as set forth in Section 2.17(b) of the Disclosure Schedule, there are no end-user customers that account for greater than five percent (5%) of the Company's net sales. Section 2.17(b) of the Disclosure Schedule contains a list of the Company's 10 largest resellers for each of the audited fiscal year ended December 31, 2003 and the 12 months ended December 31, 2004 and sets forth opposite the name of each such reseller the percentage of net sales attributable to such reseller. During the last 12 months, the Company has not received any written notices or threats of termination from any of such resellers that any such reseller intends or otherwise anticipates a termination or material reduction in the level of business with the Company. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.17 (each a "Material Contract" and collectively, the "Material Contracts") have been delivered to Parent. Each Material Contract to which the Company is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company enforceable against each of the parties thereto in material accordance with its terms, and is in full force and effect with respect to the Company. Each of the Company and its Subsidiaries, as applicable, is in compliance with and has not materially breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any such Material Contract. No party obligated to the Company pursuant to any such Material Contract has breached, violated or defaulted under such Material Contract, nor does the Company have Knowledge of or taken any event that would constitute action or failed to act, such a breachthat, violation or default with the lapse of time, giving of notice or both. Each , such action or failure to act would constitute such a breach, violation or default under such Material Contract is in full force and effect, and the Company is not subject to by any default thereunder, nor to the Knowledge such other party.
(c) All outstanding indebtedness of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or its Subsidiaries may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseprepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a) the Miami Subs Schedules, neither Miami Subs nor any of the Disclosure Letter (specifying the appropriate subparagraph), the Company its subsidiaries is not a party to, nor to or is it bound by any of the following (each, a “Material Contract”):by:
(ia) any collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(c) any employment agreement other than any agreement or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023;
(iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any consulting agreement, contract or commitment with any officer or director level employee, not terminable by Miami Subs or any of its subsidiaries on thirty days notice without liability, except to grant the extent general principles of wrongful termination law may limit Miami Subs's or any severance or termination pay or benefits (in cash or otherwise, but excluding statutory notice payments and payments required by applicable Law) of its subsidiaries' ability to any Employee of the Companyterminate employees at will;
(vd) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than as required by local Law)Agreement;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate;
(ixe) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been not entered into in the ordinary course of businessbusiness other than indemnification agreements between Miami Subs or any of its subsidiaries and any of its present or former officers or directors;
(xf) any agreement, contract or commitment containing any covenant limiting the freedom of Miami Subs or any of its subsidiaries to engage in any line of business or compete with any person;
(g) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $50,000 in the aggregate100,000 and not cancelable without penalty;
(xih) 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 businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiiij) any agreement set forth in Section 4.11joint marketing or development agreement;
(xivk) any distribution agreement providing a customer with refund rights;
(xv) identifying any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorscontain exclusivity provisions); or
(xvil) any Lease Agreement.
other agreement, contract or commitment (bexcluding real and personal property leases) The Company which involve payment by Miami Subs or any of its subsidiaries under any such agreement, contract or commitment of $100,000 or more in the aggregate and is in material compliance with and not cancelable without penalty within thirty (30) days. Neither Miami Subs nor any of its subsidiaries, nor to Miami Subs's knowledge any other party to any Miami Subs Contract (as defined below), has not materially breached, violated or defaulted under, or received notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any Material of the agreements, contracts or commitments to which Miami Subs is a party or by which it is bound of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, a "Miami Subs Contract") in such a manner as would permit any other party to cancel or terminate any such Miami Subs Contract, nor does the Company have Knowledge of or would permit any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no other party to seek damages, which cancellation, termination or damages would have a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseAdverse Effect on Miami Subs.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 4.15(a2.11(a) of the Lanacom Disclosure Letter (specifying the appropriate subparagraph)Schedule, the Company is not a party to, neither Lanacom nor is it bound by any of the following (eachLanacom Subsidiaries have continuing obligations under, nor are any of them a “Material Contract”):party to nor are bound by:
(i) any employment agreement other than any agreement voluntary recognition agreements, accreditation order or offer letter that is terminable at-will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity accelerationcollective bargaining agreements;
(ii) any agreements with or arrangements that contain any severance pay, post- employment liabilities or obligations or "golden parachute" provisions (or similar provisions which provide for payment of consideration upon the currently active top 20 customers completion of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023transactions contemplated herein);
(iii) any agreements with the currently active top 20 suppliers of the Companybonus, whether of productsincentive, servicesdeferred compensation, royalty paymentspension, Intellectual Property Rights profit sharing or otherwiseretirement plans, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment to grant any severance with an employee or termination pay individual consultant or benefits (in cash salesperson or otherwiseconsulting or sales agreement, but excluding statutory notice payments and payments required by applicable Law) to any Employee of the Companycontract or commitment with a firm or other organization;
(v) any agreement with or plan, including, without limitation, any Employee under stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which the Company has any ongoing liability which provides for the increase of benefitswill be increased, or the accelerated vesting of benefitsbenefits of which will be accelerated, upon by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence value of any additional subsequent events) or which provides for of the benefits with a value of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than Agreement, except as required by local Law)provided herein;
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viiivii) any lease of personal property or equipment having a value annual lease payments individually in excess of $50,00025,000;
(viii) any agreement of indemnification, warranty or guaranty other than in the aggregateordinary course of business;
(ix) any agreement agreement, contract or commitment containing any covenant limiting the freedom of indemnification Lanacom or guaranty, but excluding agreements any of indemnification the Lanacom Subsidiaries to engage in any line of business or guaranty that are contained in the Company’s written agreements to compete with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of businessany person;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $50,000 in the aggregate_______;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets any material assets, or any interest in any business enterprise outside the ordinary course of Lanacom and the Company’s Lanacom Subsidiaries' business, taken as a whole;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xiii) any agreement set forth in Section 4.11distribution, joint marketing or development agreement;
(xiv) any agreement providing a agreement, contract or commitment with any customer with refund rightswhich, during the last two fiscal years of Lanacom, accounted, or is expected to account during Lanacom's current fiscal year, for more than 5% of Lanacom's revenue or trade payables;
(xv) any contractsother agreement, licenses and agreements contract or commitment that involves _______ or more or is not cancelable without penalty within thirty (30) days;
(xvi) transfer or license to which the Company (a) grants any third party or otherwise extend, amend or modify any rights to a third Person a Lanacom Intellectual Property or acquire, license or other otherwise procure any intellectual property right in or to of any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into in the ordinary course of business; (ii) non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractorsparty; or
(xvixvii) enter into any Lease Agreementagreement restricting Lanacom or any of the Lanacom Subsidiaries from any business activity.
(b) The Company is Except for any alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in material compliance with and has not materially Section 2.11(b) of the Lanacom Disclosure Schedule, neither Lanacom nor any of the Lanacom Subsidiaries have breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material agreement, contract or commitment to which it is bound (including those set forth in the Lanacom Disclosure Schedule (any such agreement, contract or commitment, of Lanacom or its Subsidiaries (a "Lanacom Contract, nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both")). Each Material Lanacom Contract is in full force and effecteffect and, and except as otherwise disclosed in Section 2.11(b) of the Company Lanacom Disclosure Schedule, is not subject to any default thereunder, nor to the Knowledge thereunder of which Lanacom or any of the Company Lanacom Subsidiaries is aware by any party obligated to the Company pursuant to Lanacom or any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwiseLanacom Subsidiaries pursuant thereto.
Appears in 1 contract
Samples: Agreement and Plan of Acquisition (Backweb Technologies LTD)
