List of Contracts. Part 2.11(a) of the Disclosure Schedule accurately identifies: (i) (A) each Acquired Company Contract relating to the employment of, or the performance of services by, any Acquired Company Employee (provided, however that Part 2.11(a)(i) will not identify “at-will” employment agreements on the form made available to Parent that do not require providing prior notice to the Acquired Company Employee prior to termination or any payment of severance in connection with termination, provided further that such agreements will constitute “Material Contract”); (B) any Acquired Company Contract pursuant to which any of the Acquired Companies is or may become obligated to make any severance, termination or similar payment to any Acquired Company Employee (other than post-termination benefits continuation coverage required by law); and (C) any Acquired Company Contract pursuant to which any of the Acquired Companies is or may become obligated to make any bonus or similar payment (other than payment in respect of salary) to any Acquired Company Employee; (ii) each Acquired Company Contract which provides for indemnification of any officer, director, employee or agent; (iii) each Acquired Company Contract relating to the voting or registration rights, or rights of first refusal or any other rights or obligations of a stockholder of any of the Acquired Companies; (iv) each Acquired Company Contract relating to the merger, consolidation, reorganization or any similar transaction with respect to any of the Acquired Companies, including the acquisition, sale, spin off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired Companies; (v) each Acquired Company Contract relating to the acquisition, transfer, sharing, or development of any Intellectual Property or Intellectual Property Right (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Acquired Companies) other than those disclosed under Section 2.11(a)(vi), Permitted Inbound Non-Exclusive Licenses or Permitted Outbound Non-Exclusive Licenses; (vi) each Acquired Company Contract relating to the license of any patent, copyright, trade secret or other Intellectual Property or Intellectual Property Right to or from any of the Acquired Companies (other than: (A) Permitted Inbound Non-Exclusive Licenses; and (B) Permitted Outbound Non-Exclusive Licenses); (vii) each Acquired Company Contract relating to the hosting of any website of any Acquired Company; (viii) each Acquired Company Contract relating to the advertising or promotion of the business of any of the Acquired Companies or pursuant to which any third parties advertise on any websites operated by any of the Acquired Companies; (ix) each Acquired Company Contract creating or relating to any partnership or joint venture or any Acquired Company Contracts relating to the sharing of revenues, profits, losses, costs or liabilities or any similar agreement; (x) each Acquired Company Contract imposing any restriction on any of the Acquired Companies: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person; or (C) to develop or distribute any technology; (xi) each Acquired Company Contract: (A) granting exclusive rights to license, market, sell or deliver any of the products or services of the Acquired Companies or of users of any marketplace, website or service of any of the Acquired Companies; or (B) otherwise contemplating an exclusive relationship between any Acquired Company and any other Person; (xii) each Acquired Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship; (xiii) each Acquired Company Contract regarding the acquisition, issuance, transfer or rights of any securities, including any restricted share agreements or escrow agreements; (xiv) each Acquired Company Contract involving any loan, guaranty, pledge, performance or completion bond or indemnity (other than indemnification provisions arising in
Appears in 1 contract
Samples: Merger Agreement (Yelp Inc)
List of Contracts. Part 2.11(a3.7(a) of the Disclosure Schedule accurately identifiesidentifies the following Acquired Company Contracts in effect as of the date of this Agreement:
(i) (A) each Acquired Company Contract relating to providing for the employment of, or the performance of services by, any employee or consultant other than: (A) any Acquired Company Employee (provided, however Contract that Part 2.11(a)(i) will not identify “at-will” employment agreements on is in all material respects consistent with the form made available of offer letter attached to Parent Part 3.7(a)(i) of the Disclosure Schedule; and (B) any Acquired Company Contract with a consultant that do does not require providing prior notice to the such Acquired Company Employee prior to termination or any payment make payments in excess of severance $50,000 in connection with termination, provided further that such agreements will constitute “Material Contract”); the aggregate;
(Bii) any Acquired Company Contract pursuant to which any of the Acquired Companies Company is or may become obligated to make any Change of Control Payment, severance, termination or similar payment to any Acquired Company Employee (other than post-termination benefits continuation coverage required by law); and (C) any Acquired Company Contract pursuant to which any of the Acquired Companies is current or may become obligated to make any bonus or similar payment (other than payment in respect of salary) to any Acquired Company Employee;
(ii) each Acquired Company Contract which provides for indemnification of any officer, director, former employee or agentdirector or other Person;
(iii) each Acquired Company Contract relating to the voting or registration rights, or rights of first refusal or any other rights or obligations of a stockholder of any of the Acquired Companies;
(iv) each Acquired Company Contract relating to the merger, consolidation, reorganization or any similar transaction with respect to any of the Acquired Companies, including the acquisition, sale, spin off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired Companies;
(v) each Acquired Company Contract relating to the acquisition, transfer, sharing, or development of any Intellectual Property or Intellectual Property Right (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Acquired Companies) other than those disclosed under Section 2.11(a)(vi), Permitted Inbound Non-Exclusive Licenses or Permitted Outbound Non-Exclusive Licenses;
(vi) each Acquired Company Contract relating to the license of any patent, copyright, trade secret or other Intellectual Property or Intellectual Property Right to or from any of the Acquired Companies (other than: (A) Permitted Inbound Non-Exclusive Licenses; and (B) Permitted Outbound Non-Exclusive Licenses);
(vii) each Acquired Company Contract relating to the hosting of any website of any Acquired Company;
(viii) each Acquired Company Contract relating to the advertising or promotion of the business of any of the Acquired Companies or pursuant to which any third parties advertise on any websites operated by any of the Acquired Companies;
(ix) each Acquired Company Contract creating or relating to any partnership or joint venture or any Acquired Company Contracts relating to the sharing of revenues, profits, losses, costs or liabilities other than Acquired Company Contracts entered into in the ordinary course of business providing for advertising revenue sharing;
(iv) each Acquired Company Contract imposing any restriction on the ability of the Acquired Company to: (A) compete with any other Person or engage in any business or (B) solicit or hire any person, except for any such Acquired Company Contract that may be cancelled by the Acquired Company without penalty or other liability of the Acquired Company upon notice of 30 days or less;
(v) each Acquired Company Contract that provides for indemnification of any current or former officer, director, manager, employee or agent;
(vi) each Acquired Company Contract pursuant to which the Acquired Company leases any real property or personal property (except personal property leases having aggregate payments of less than $25,000);
(vii) each Acquired Company Contract pursuant to which the Acquired Company licenses any Proprietary Asset that is material to the Business to or from any third party or which materially limit or constrain the use or other commercialization by the Acquired Company of any Acquired Company Proprietary Asset;
(viii) each Acquired Company Contract with Seller or any similar agreementof its Affiliates;
(ix) each Acquired Company Contract relating to material Acquired Company Proprietary Assets;
(x) each Acquired Company Contract imposing any restriction on any of the Acquired Companies: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services providing for any other Person or to transact business or deal in any other manner with any other Person; or (C) to develop or distribute any technologyIndebtedness;
(xi) each Acquired Company Contract: (A) granting exclusive rights to license, market, sell or deliver any of the products or services of Contract constituting a settlement agreement for which the Acquired Companies Company has any pending or of users of ongoing obligations or is subject to any marketplace, website or service of any of the Acquired Companies; or (B) otherwise contemplating an exclusive relationship between any Acquired Company and any other Personrestrictions;
(xii) each Acquired Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationshipgranting a power of attorney on behalf of the Acquired Company;
(xiii) (A) each material Acquired Company Contract regarding entered into with any Key Retailer pursuant to the acquisition, issuance, transfer which the Acquired Company is entitled to receive revenue from such Key Retailer and (B) each material Acquired Company Contract entered into with any Key Redemption Partner pursuant to which such Key Redemption Partner is entitled to receive amounts from the Acquired Company or rights any Members in the form of any securities, including any restricted share agreements cash or escrow agreements;redeemed Gift Cards; and
(xiv) each any other Acquired Company Contract involving any loan, guaranty, pledge, that: (A) contemplates or involves: (1) the payment or delivery by or to the Acquired Company of cash or other consideration in an amount or having a value in excess of $50,000 in the aggregate; or (2) the performance of services by or completion bond for the Acquired Company having a value in excess of $50,000 in the aggregate; and (B) that: (1) has a term of more than 90 days; or indemnity (other than indemnification provisions arising in2) may not be terminated by the Acquired Company (without penalty) within 90 days after the delivery of a termination notice by the Acquired Company. (Contracts in the respective categories described in clauses “(i)” through “(xiv)” above are referred to in this Agreement as “Material Contracts”.)
Appears in 1 contract
List of Contracts. Part 2.11(a) of the Disclosure Schedule completely and accurately identifiesidentifies each of the following Contracts in effect, or having remaining rights or obligations, as of the date of this Agreement:
(i) each Acquired Entity Contract for the employment or service of any individual on a full-time, part-time, consulting, independent contractor, or other basis, but excluding those Acquired Entity Contracts that are at-will and may be terminated by the applicable Acquired Entity without liability to the applicable Acquired Entity (other than payment of: (A) statutory separation payments; (B) base salary, wages or consulting or advisory fees for services rendered through the date of termination of services; and/or (C) reimbursement of travel expenses or other out-of-pocket expenses of a routine nature incurred by such individual in the course of performing such individual’s duties for the applicable Acquired Entity);
(ii) each Acquired Company Entity Contract relating between any Acquired Entity and any Acquired Entity Service Provider pursuant to the employment ofwhich: (A) benefits would vest, amounts would become payable or the performance terms of services by, which would otherwise be altered by virtue of the consummation of the transactions contemplated by this Agreement (whether alone or upon the occurrence of any Acquired Company Employee (provided, however that Part 2.11(a)(i) will not identify “at-will” employment agreements on the form made available to Parent that do not require providing prior notice to the Acquired Company Employee prior to termination additional or any payment of severance in connection with termination, provided further that such agreements will constitute “Material Contract”subsequent events); (B) any Acquired Company Contract pursuant to which any of the Acquired Companies Entity is or may become obligated to make any severance, termination, termination indemnity or redundancy, retention, gross-up or similar payment to any Acquired Company Employee (Entity Service Provider, other than post-termination benefits continuation coverage required by law)statutory separation payments; and or (C) any Acquired Company Contract pursuant to which any of the Acquired Companies Entity is or may become obligated to make any bonus bonus, incentive compensation or similar payment (other than payment in respect of salary, wages, consulting or advisory fees or statutory separation payments) to any Acquired Company EmployeeEntity Service Provider;
(iiiii) any Acquired Entity Contract with any labor union or association representing any Acquired Entity Service Provider;
(iv) each Acquired Company Entity Contract which provides for indemnification of any officer, director, employee or agentAcquired Entity Service Provider;
(iiiv) each Acquired Company Entity Contract relating to the voting or registration rights, or rights of first refusal or and any other rights or obligations of a stockholder or equity interest holder of any of the Acquired CompaniesEntities;
(ivvi) each Acquired Company Entity Contract relating to the merger, consolidation, reorganization or any similar transaction involving or with respect to any of the Acquired Companies, including the acquisition, sale, spin off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired CompaniesEntity;
(vvii) each Acquired Company Entity Contract that is a joint development agreement, technical collaboration agreement, agreement relating to the acquisition, transfer, sharing, or development joint ownership of any Intellectual Property or Intellectual Property Right (including any joint development agreement, technical collaboration agreement Rights or similar agreement entered into by any of the Acquired Companies) other than those disclosed under Section 2.11(a)(vi), Permitted Inbound Non-Exclusive Licenses or Permitted Outbound Non-Exclusive LicensesEntity;
(viviii) each Acquired Company Contract relating to the license of any patent, copyright, trade secret or other Intellectual Property or Intellectual Property Right to or from any of the Acquired Companies (other than: (A) Permitted Inbound Non-Exclusive Licenses; and (B) Permitted Outbound Non-Exclusive Licenses);
(vii) each Acquired Company Entity Contract relating to the hosting of any website of any Acquired CompanyEntity Product;
(viiiix) each Acquired Company Entity Contract relating to for the advertising or promotion of the business business, including telemarketing and database marketing, of any of the Acquired Companies Entity or pursuant to which any third parties advertise or have links to their branding or their websites displayed on any websites operated by any Acquired Entity Website, in each case with an expected per annum aggregate value in excess of the Acquired Companies;
(ix) each Acquired Company Contract creating or relating to any partnership or joint venture or any Acquired Company Contracts relating to the sharing of revenues, profits, losses, costs or liabilities or any similar agreement$25,000;
(x) each Acquired Company Entity Contract relating to the acquisition, sale, spin-off or outsourcing of any business unit or operation of any Acquired Entity;
(xi) each Acquired Entity Contract creating or relating to any partnership, joint venture, strategic alliance or any sharing of revenues, profits or losses or similar arrangement;
(xii) each Acquired Entity Contract imposing any restriction on any of the Acquired CompaniesEntity: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from or to associate with the branding of any other Person, to sell sell, market or promote any product or other asset to or perform any services for any other Person Person, or to transact business or deal in any other manner with any other Person; or (C) involving the grant of “most favored nation” status to any Person or any exclusive or preferential rights to acquire, provide, sell or distribute any product or other asset or any services of any Acquired Entity to any Person; (D) to develop or distribute any technologyAcquired Entity Owned IP (including any Acquired Entity Owned Software); or (E) to use any Acquired Entity Owned IP (including any Acquired Entity Owned Software);
(xixiii) each Acquired Company Entity Contract: (A) granting exclusive rights to license, market, sell sell, support, make available or deliver any product or other asset or service of the products or services of the any Acquired Companies Entity, or of users of any marketplace, website Computer Software, website, or service of any of the Acquired CompaniesEntity; or (B) otherwise contemplating an exclusive relationship between any Acquired Company Entity and any other Person, including with respect to advertising; or (C) contemplating the release of Source Code to any Person other than any Acquired Entity;
(xiixiv) each Acquired Company Entity Contract creating or involving any referral or agency relationship, sales representative, channel partner, distribution or reseller arrangement or franchise relationship;
(xiiixv) each Acquired Company Entity Contract regarding the acquisition, issuance, issuance or transfer or rights of any securities, securities and each Acquired Entity Contract affecting or dealing with any securities of any Acquired Entity including any restricted share agreements or securities escrow agreements;
(xivxvi) each Acquired Company Entity Contract for the sale of any of the assets of any Acquired Entity, other than in the ordinary course of business, or for the grant to any Person of any preferential rights to purchase any of the assets of any Acquired Entity;
(xvii) each Acquired Entity Contract involving any loan, guaranty, pledge, performance or completion bond or indemnity or surety arrangement or otherwise relating to the incurrence, assumption or guarantee of any Indebtedness by any Acquired Entity or imposing an Encumbrance on any of the assets of any Acquired Entity, in each case other than: (A) pursuant to advances made to any employees in the ordinary course of business; or (B) providing for indemnification of directors and officers;
(xviii) each lease, lease guaranty, sublease, license or other Acquired Entity Contract for the leasing, use or occupancy of the Properties;
(xix) each Acquired Entity Contract relating to the purchase or sale of any asset by or to, or the performance of any services by or for, any Related Party (other than indemnification provisions arising inoffer letters and option agreements entered into in the ordinary course of business);
(xx) each Acquired Entity Contract relating to any liquidation or dissolution of any Acquired Entity;
(xxi) each Acquired Entity Contract pursuant to which any broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with any of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any Acquired Entity;
(xxii) any Acquired Entity Contract: (A) containing “standstill” or similar provisions; or (B) providing any right of first negotiation, right of first refusal or similar right to any Person;
(xxiii) all material Acquired Entity Contracts with any Governmental Body;
(xxiv) any Acquired Entity Contract that contemplates or involves: (A) the payment or delivery of cash or other consideration by any Acquired Entity in an amount or having a value in excess of $150,000 individually, or $250,000 in the aggregate, in each case on a per annum basis, when taken together with all other Acquired Entity Contracts involving such Person or such Person’s Affiliates; or (B) the performance of services having a value in excess of $250,000 individually, or $500,000 in the aggregate, in each case on a per annum basis, when taken together with all other Acquired Entity Contracts involving such Person or such Person’s Affiliates, in each case, except: (1) as disclosed in Part 2.11(a)(ii) of the Disclosure Schedule; or (2) Acquired Entity Contracts with Acquired Entity Service Providers that are at-will and may be terminated by the applicable Acquired Entity without liability to the applicable Acquired Entity (other than payment of: (x) statutory separation payments; (y) base salary, wages or consulting or advisory fees for services rendered through the date of termination of services; and/or (z) reimbursement of travel expenses or other out-of-pocket expenses of a routine nature incurred by such individual in the course of performing such individual’s duties for the applicable Acquired Entity);
(xxv) each Acquired Entity Contract and each Contract entered into by any Affiliate of any Acquired Entity in settlement of any Legal Proceeding or other dispute; and
(xxvi) each Acquired Entity Contract under which the consequences of a default, breach or termination would reasonably be expected to have a Material Adverse Effect. Contracts in the respective categories described in clauses “(i)” through (xxviii)” above, all Contracts identified, or required to be identified, in Part 2.11(a) of the Disclosure Schedule, and all Contracts identified, or required to be identified or expressly excluded from the requirement to be disclosed, in Parts 2.10(d), 2.10(e), 2.10(f) and 2.15(a) of the Disclosure Schedule are collectively referred to in this Agreement as “Material Contracts.”
Appears in 1 contract
Samples: Merger Agreement (Autodesk Inc)
List of Contracts. Part 2.11(a3.7(a) of the Disclosure Schedule accurately identifiesidentifies the following Acquired Company Contracts in effect as of the date of this Agreement:
(i) (A) each Acquired Company Contract relating to with any of the employment of, Acquired Company Employees or the performance of services by, any consultant other than: (A) any Acquired Company Employee Contract that is substantially consistent with: (provided, however that Part 2.11(a)(i1) will not identify “at-will” employment agreements on the form made available of offer letter attached to Parent Part 3.7(a)(i) of the Disclosure Schedule; (2) the form of employee proprietary information and inventions agreement attached to Part 3.7(a)(i) of the Disclosure Schedule; (3) the form of consulting services agreement attached to Part 3.7(a)(i) of the Disclosure Schedule; (4) the form of independent contractor agreement attached to Part 3.7(a)(i) of the Disclosure Schedule; and (5) the form of recruiting agreement attached to Part 3.7(a)(i) of the Disclosure Schedule; and (B) any Acquired Company Contract with a consultant that do does not require providing prior notice to the such Acquired Company Employee prior to termination or any payment make payments in excess of severance $100,000 in connection with termination, provided further that such agreements will constitute “Material Contract”); the aggregate;
(Bii) any Acquired Company Contract pursuant to which any of the Acquired Companies Company is or may become obligated to make any severance, termination or similar payment to any Acquired Company Employee (other than post-termination benefits continuation coverage required by law); and (C) any Acquired Company Contract pursuant to which any Change of the Acquired Companies is or may become obligated to make any bonus or similar payment (other than payment in respect of salary) to any Acquired Company Employee;
(ii) each Acquired Company Contract which provides for indemnification of any officer, director, employee or agentControl Payment;
(iii) each Acquired Company Contract relating to the voting or registration rights, or rights of first refusal or any other rights or obligations of a stockholder of any of the Acquired Companies;
(iv) each Acquired Company Contract relating to the merger, consolidation, reorganization or any similar transaction with respect to any of the Acquired Companies, including the acquisition, sale, spin off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired Companies;
(v) each Acquired Company Contract relating to the acquisition, transfer, sharing, or development of any Intellectual Property or Intellectual Property Right (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Acquired Companies) other than those disclosed under Section 2.11(a)(vi), Permitted Inbound Non-Exclusive Licenses or Permitted Outbound Non-Exclusive Licenses;
(vi) each Acquired Company Contract relating to the license of any patent, copyright, trade secret or other Intellectual Property or Intellectual Property Right to or from any of the Acquired Companies (other than: (A) Permitted Inbound Non-Exclusive Licenses; and (B) Permitted Outbound Non-Exclusive Licenses);
(vii) each Acquired Company Contract relating to the hosting of any website of any Acquired Company;
(viii) each Acquired Company Contract relating to the advertising or promotion of the business of any of the Acquired Companies or pursuant to which any third parties advertise on any websites operated by any of the Acquired Companies;
(ix) each Acquired Company Contract creating or relating to any partnership or joint venture or any Acquired Company Contracts relating to the sharing of revenues, profits, losses, costs or liabilities liabilities, other than Acquired Company Contracts entered into in the ordinary course of business providing for advertising revenue sharing under which: (A) in the case of any such Contract where the Company is a recipient of advertising revenue, annual payments to the Company do not exceed $200,000; or (B) in the case of any similar agreementsuch Contract where the Company makes expenditures in respect of advertising, annual payments by the Company do not exceed $200,000;
(xiv) each Acquired Company Contract imposing any restriction on any of the Acquired Companies: Companies to (A) to compete with any other Person; Person or engage in any business, or (B) solicit or hire any person, other than, in the case of clause (B), any Acquired Company Contract entered into in the ordinary course of business consistent with past practices;
(v) each Acquired Company Contract that provides for indemnification of any officer, director, manager, employee or agent;
(vi) each Acquired Company Contract pursuant to acquire which any product Acquired Company leases any real property or other asset personal property (except personal property leases having aggregate payments of less than $50,000);
(vii) each Acquired Company Contract with Seller or any services from of its Affiliates (other than any other PersonAcquired Company);
(viii) each Acquired Company Contract providing for an exclusive relationship with any vendor or supplier to any Acquired Company;
(ix) each Acquired Company Contract relating to material Acquired Company Proprietary Assets, to sell any product or other asset to or perform any services except for any other Person or Proprietary Asset that is licensed to transact business or deal in any other manner with of the Acquired Companies under any other Person; or third-party software license generally available to the public at a cost of less than $50,000;
(Cx) to develop or distribute any technologyeach Acquired Company Contract for Indebtedness;
(xi) each Acquired Company Contract: (A) granting exclusive rights to license, market, sell or deliver Contract constituting a settlement agreement for which any of the products or services of the Acquired Companies has any pending or of users of ongoing obligations or is subject to any marketplace, website or service of any of the Acquired Companies; or (B) otherwise contemplating an exclusive relationship between any Acquired Company and any other Personrestrictions;
(xii) each Acquired Company Contract creating or involving granting a power of attorney for any agency relationship, distribution arrangement or franchise relationshipof the Acquired Companies;
(xiii) each Acquired Company Contract regarding the acquisition, issuance, transfer or rights of any securities, including any restricted share agreements or escrow agreements;required to be set forth in Section 3.13; and
(xiv) each any other Acquired Company Contract involving that contemplates or involves: (A) the payment or delivery by or to any loanAcquired Company of cash or other consideration in an amount or having a value in excess of $100,000 in the aggregate; or (B) the performance of services by or for any Acquired Company: (1) having a value in excess of $100,000 in the aggregate; and (2) that may not be terminated by the relevant Acquired Company (without penalty) within 90 days after the delivery of a termination notice by the relevant Acquired Company, guarantyother than, pledgein each case of clauses “(A)” and “(B)”, performance or completion bond or indemnity any Acquired Company Contract that is substantially consistent with (other than indemnification provisions arising inx) the form of insertion order attached to Part 3.7(a)(xiv) of the Disclosure Schedule and (y) the form of recruiting agreement attached to Part 3.7(a)(xiv) of the Disclosure Schedule. (Contracts in the respective categories described in clauses “(i)” through “(xiv)”, together with each Contract required to be listed in Part 3.6(b) of the Disclosure Schedule and each Real Property Lease and Lessor Instrument required to be listed in Part 3.16 of the Disclosure Schedule are collectively referred to in this Agreement as “Material Contracts”.)
Appears in 1 contract
List of Contracts. Part 2.11(a) of the Disclosure Schedule completely and accurately identifiesidentifies as of the date of this Agreement:
(i) (A) each Acquired Company Entity Contract relating to for (i) the employment ofof any individual on a full-time or part-time basis, other than those that are immediately terminable at-will without notice, severance, or other cost or Liability; or (ii) the performance engagement of services byany individual on a consulting, independent contractor or other basis, other than those that are terminable on less than thirty (30) days’ notice without penalty or other cost or Liability;
(ii) other than any Acquired Company Entity Employee Plan listed in Part 2.15 of the Disclosure Schedule, each Acquired Entity Contract between any Acquired Entity and any Acquired Entity Service Provider pursuant to which: (providedi) benefits would vest, however that Part 2.11(a)(i) will not identify “at-will” employment agreements on amounts would become payable or the form made available to Parent that do not require providing prior notice to terms of which would otherwise be altered by virtue of the Acquired Company Employee prior to termination consummation of the transactions contemplated by this Agreement (whether alone or upon the occurrence of any payment of severance in connection with termination, provided further that such agreements will constitute “Material Contract”additional or subsequent events); or (Bii) any Acquired Company Contract pursuant to which any of the Acquired Companies Entity is or may become obligated to make any severance, termination, termination indemnity or redundancy, retention, change of control, gross-up or similar payment to any Acquired Company Employee Entity Service Provider;
(other than post-termination benefits continuation coverage required by law); and (Ciii) any Acquired Company Entity Contract pursuant to which with any of the Acquired Companies is labor union or may become obligated to make any bonus or similar payment (other than payment in respect of salary) to association representing any Acquired Company EmployeeEntity Service Provider;
(iiiv) each Acquired Company Entity Contract which provides for indemnification of any officer, director, employee officer or agentdirector of the Company;
(iiiv) each Acquired Company Entity Contract relating to the voting or registration rights, or rights of first refusal or any other rights or obligations of a stockholder or equity interest holder of any of the Acquired CompaniesEntities;
(ivvi) each Acquired Company Entity Contract relating to the merger, consolidation, reorganization or any similar transaction involving or with respect to any of the Acquired Companies, including the acquisition, sale, spin off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired CompaniesEntity;
(vvii) each Acquired Company Entity Contract (including each Acquired Entity IP Contract) relating to the acquisition, transfer, development, distribution, licensing, sharing, granting rights to or development sharing of any Intellectual Property or Intellectual Property Right Rights (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Acquired Companies) Entity), other than those disclosed under Section 2.11(a)(vi), Permitted Excluded Inbound Non-Exclusive Licenses or Permitted and Excluded Outbound Non-Exclusive Licenses;
(viviii) each Acquired Company Contract relating to the license of any patent, copyright, trade secret or other Intellectual Property or Intellectual Property Right to or from any of the Acquired Companies (other than: (A) Permitted Inbound Non-Exclusive Licenses; and (B) Permitted Outbound Non-Exclusive Licenses);
(vii) each Acquired Company Entity Contract relating to the hosting of any website of any Acquired CompanyEntity Product;
(viiiix) each Acquired Company Entity Contract with Key Business Partner;
(x) each Acquired Entity Contract relating to the advertising or promotion of the business business, including telemarketing and database marketing, of any of the Acquired Companies Entity or pursuant to which any third parties advertise or have links to their branding or their websites displayed on any websites operated by any of the Acquired CompaniesEntity Website;
(ixxi) each Acquired Company Entity Contract relating to the acquisition, sale, spin-off or outsourcing of any business unit or operation of any Acquired Entity;
(xii) each Acquired Entity Contract creating or relating to any partnership or partnership, joint venture venture, strategic alliance or any Acquired Company Contracts relating to the sharing of revenues, profits, losses, costs or liabilities or any similar agreementarrangement;
(xxiii) each Acquired Company Entity Contract imposing any restriction on any of the Acquired CompaniesEntity: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from or to associate with the branding of any other Person, to sell sell, market or promote any product or other asset to or perform any services for any other Person Person, or to transact business or deal in any other manner with any other Person; or (C) involving the grant of “most favored nation” status to any Person or any exclusive or preferential rights to acquire, provide, sell or distribute any product or other asset or any services of any Acquired Entity to any Person; (D) to develop or distribute any technologytechnology or other Intellectual Property; or (E) disparage any Person other than any Acquired Entity;
(xixiv) each Acquired Company Entity Contract: (A) granting exclusive rights to license, market, sell sell, support, make available or deliver any product or other asset or service of the products or services of the any Acquired Companies Entity, or of users of any marketplace, website Computer Software, website, or service of any of the Acquired CompaniesEntity; or (B) otherwise contemplating an exclusive relationship between any Acquired Company Entity and any other Person, including with respect to advertising; or (C) contemplating the release of Source Code to any Person other than any Acquired Entity;
(xiixv) each Acquired Company Entity Contract creating or involving any agency referral relationship, sales representative, channel partner distribution or reseller arrangement or franchise relationship;
(xiiixvi) each Acquired Company Entity Contract regarding for the acquisition, issuance, transfer or rights sale of any securitiesof the assets of any Acquired Entity, including other than in the ordinary course of business, or for the grant to any restricted share agreements or escrow agreementsPerson of any preferential rights to purchase any of the assets of any Acquired Entity;
(xivxvii) each Acquired Company Entity Contract involving any loan, guaranty, pledge, performance or completion bond or indemnity or surety arrangement or otherwise relating to the incurrence, assumption or guarantee of any Indebtedness by any Acquired Entity or imposing an Encumbrance on any of the assets of any Acquired Entity (other than indemnification provisions arising ina Permitted Encumbrance);
(xviii) each lease, lease guaranty, sublease, license or other Acquired Entity Contract for the leasing, use or occupancy of the Properties;
(xix) each Acquired Entity Contract relating to the purchase or sale of any asset by or to, or the performance of any services by or for, any Related Party (other than offer letters and option agreements entered into in the ordinary course of business);
(xx) each Acquired Entity Contract relating to any liquidation or dissolution of any Acquired Entity;
(xxi) each Acquired Entity Contract pursuant to which any broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with any of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any Acquired Entity;
(xxii) any Acquired Entity Contract with a bank, financial institution or lender other than customer agreements in the ordinary course of business;
(xxiii) any Acquired Entity Contract: providing any right of first negotiation, right of first refusal or similar right to any Person;
(xxiv) any Acquired Entity Contract under which the Merger would give rise to or expand any rights in favor of, or any obligations on the part of, the Company or any other Person;
(xxv) all material Contracts with any Governmental Body;
(xxvi) other than Contracts listed on Part 2.11(a)(i) of the Disclosure Schedule, any Acquired Entity Contract that contemplates or involves: (A) the payment or delivery of cash or other consideration by any Acquired Entity in an amount or having a value in excess of $250,000 individually, or $500,000 in the aggregate when taken together with all other Acquired Entity Contracts involving such Person or such Person’s Affiliates; or (B) the performance of services having a value in excess of 250,000 individually, or $500,000 in the aggregate when taken together with all other Acquired Entity Contracts involving such Person or such Person’s Affiliates; and
(xxvii) each Acquired Entity Contract and each Contract entered into by any Affiliate of any Acquired Entity in settlement of any Legal Proceeding or other dispute. Contracts in the respective categories described in clauses “(i)” through “(xxvii)” above, all Contracts identified, or required to be identified, in Part 2.11(a) of the Disclosure Schedule, and all Contracts identified, or required to be identified, in Parts 2.10(c), 2.10(d) and 2.15(a) of the Disclosure Schedule are collectively referred to in this Agreement as “Material Contracts.”
Appears in 1 contract
List of Contracts. Part 2.11(a3.11(a) of the Disclosure Schedule accurately identifies:
(i) (A) in relation to current Acquired Company Employees not employed on the Company’s standard form of employment agreement attached to Part 3.11(a)(i) of the Disclosure Schedule, each Acquired Company Contract relating to the employment of, or the performance of services by, any Acquired Company Employee (provided, however that Part 2.11(a)(i) will not identify “at-will” employment agreements on the form made available to Parent that do not require providing prior notice to the Acquired Company Employee prior to termination or any payment of severance in connection with termination, provided further that such agreements will constitute “Material Contract”)Employee; (B) any Acquired Company Contract pursuant to which any of the Acquired Companies Company is or may become obligated to make any severance, termination or similar payment to any Acquired Company Employee (other than post-termination benefits continuation coverage required by law)Employee; and (C) any Acquired Company Contract pursuant to which any of the Acquired Companies Company is or may become obligated to make any bonus or similar payment (other than payment in respect of salary) to any Acquired Company Employee;
(ii) each Acquired Company Contract which provides for indemnification of any officer, director, employee or agent;
(iii) each Acquired Company Contract relating to the voting or registration rights, or rights of first refusal or and any other rights or obligations of a stockholder shareholder of any of the Acquired Companies;
(iv) each Acquired Company Contract relating to the merger, consolidation, reorganization or any similar transaction with respect to any of the Acquired Companies, including the acquisition, sale, spin off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired Companies;
(v) each Acquired Company Contract relating to the acquisition, transfer, sharing, development or development licensing of any technology, Intellectual Property or Intellectual Property Right (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Acquired Companies, but excluding: (i) other than those disclosed under Section 2.11(a)(viContracts identified in Part 3.10 of the Disclosure Schedule; (ii) agreements between any Acquired Company and its employees in the Company’s standard form thereof; (iii) non-exclusive licenses to third party software that is not incorporated into, or used directly in the development, testing, distribution, maintenance or support of, any Acquired Company Software and that is not otherwise material to any Acquired Company’s business; (iv) object code licenses entered into in the ordinary course of business consistent with past practices as part of any sale of products or the provision of services by any Acquired Company; and (v) nondisclosure agreements entered into in the ordinary course of business consistent with past practices by the Acquired Companies), Permitted Inbound Non-Exclusive Licenses or Permitted Outbound Non-Exclusive Licenses;
(vi) each Acquired Company Contract relating to the license of any patent, copyright, trade secret or other Intellectual Property or Intellectual Property Right to or from any of the Acquired Companies (other than: (A) Permitted Inbound Non-Exclusive Licenses; and (B) Permitted Outbound Non-Exclusive Licenses);
(vii) each Acquired Company Contract relating to the hosting of any website of any of the Acquired CompanyCompanies;
(viiivii) each Acquired Company Contract relating to the advertising or promotion of the business of any of the Acquired Companies or pursuant to which any third parties advertise on any websites operated by any of the Acquired Companies;
(viii) each Acquired Company Contract relating to the acquisition, sale, spin-off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired Companies;
(ix) each Acquired Company Contract creating or relating to any partnership or joint venture or any Acquired Company Contracts relating to the sharing of of: (A) revenues, profits, losses, losses or liabilities; or (B) any costs or liabilities or any similar agreementin excess of £10,000;
(x) each Acquired Company Contract imposing any restriction on any of the Acquired Companies: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person; or (C) to develop or distribute any technology;
(xi) each Acquired Company Contract: (A) granting exclusive rights to license, market, sell or deliver any of the products or services of the Acquired Companies or of users of any marketplace, website or service of any of the Acquired Companies; or (B) otherwise contemplating an exclusive relationship between any of the Acquired Company Companies and any other Person;
(xii) each Acquired Company Contract creating or involving any agency relationship, distribution or reseller arrangement or franchise relationship, in each case, involving the sale of Acquired Company Products having a value in excess of £20,000 during the 12 months prior to the date of this Agreement;
(xiii) each Acquired Company Contract regarding the acquisition, issuance, issuance or transfer or rights of any securities, securities and each Acquired Company Contract affecting or dealing with any securities of any of the Acquired Companies including any restricted share agreements or escrow agreements;
(xiv) each Acquired Company Contract involving any loan, guaranty, pledge, performance or completion bond or indemnity or surety arrangement (in the case of an indemnity arrangement, other than indemnification such provisions arising incontained in any Acquired Company Contract which is in the standard form attached to Part 3.11(a)(xiv) of the Disclosure Schedule);
(xv) each Acquired Company Contract relating to the purchase or sale of any asset by or to, or the performance of any services by or for, any Related Party;
(xvi) any Acquired Company Contract that contemplates or involves the payment or delivery of cash or other consideration by any of the Acquired Companies in an amount or having a value in excess of $25,000;
(xvii) any Acquired Company Contract: (A) with any customer of any of the Acquired Companies who has purchased or licensed any products from such Acquired Company pursuant to a Contract other than: (1) such Acquired Company’s standard form of customer Contract (with no material deviations); or (2) except as contemplated by clause “(B)” of this sentence or another clause of this Section 2.11(a), a purchase order; or (B) that contemplates or involves the payment or delivery of cash or other consideration to such Acquired Company in an amount or having a value in excess of $25,000; and
(xviii) any Acquired Company Contract to which any Governmental Body is a party or is bound. (Contracts in the respective categories described in clauses “(i)“ through “(xviii)“ above and all Contracts identified, or required to be identified, in Part 3.11(a) of the Disclosure Schedule are referred to in this Agreement as “Material Contracts.”)
Appears in 1 contract
Samples: Share Purchase Agreement (Riverbed Technology, Inc.)
List of Contracts. Part 2.11(a2.12(a) of the Disclosure Schedule accurately identifies:
(i) (A) each Acquired Company Companies Contract relating to the employment of, or the performance of services by, any Acquired Company Companies Employee and providing for payments in any twelve (provided, however that Part 2.11(a)(i12) will not identify “month period of more than $100,000 other than Acquired Companies Employee Plans and at-will” employment agreements on the form made available to Parent will offer letters that do not require providing prior notice to the Acquired Company Employee prior to termination contain no severance or any payment change of severance in connection with termination, provided further that such agreements will constitute “Material Contract”)control provisions; (B) any Acquired Company Companies Contract pursuant to which any of the Acquired Companies is or may will become obligated to make any severance, termination or similar payment to any Acquired Company Employee (other than post-termination benefits continuation coverage required by law)Companies Employee; and (C) any Acquired Company Companies Contract pursuant to which any of the Acquired Companies is or may will become obligated to make any bonus or similar payment (other than payment in respect of salary) to any Acquired Company Companies Employee;
(ii) each Acquired Company Companies Contract which provides for indemnification of any officer, director, employee or agent;
(iii) each Acquired Company Companies Contract relating to the voting or registration rights, or rights of first refusal or and any other rights or obligations of a stockholder of any of the Acquired Companies;
(iv) each Acquired Company Companies Contract relating to the any merger, consolidation, reorganization or any similar transaction with respect to any of the Acquired Companies, including the acquisition, sale, spin off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired Companies;
(v) each Acquired Company Companies IP Contract (other than: (A) agreements between any of the Acquired Companies and its employees in connection with their employment in the current standard form made available to the Purchaser without any material deviation thereto; and (B) Contracts for Commercial Software or Open Source Code) relating to the acquisition, transfer, sharing, development or development sharing of any Intellectual Property Software or Intellectual Property Right Rights (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Acquired Companies) other than those disclosed under Section 2.11(a)(vi), Permitted Inbound Non-Exclusive Licenses or Permitted Outbound Non-Exclusive Licenses;
(vi) each Acquired Company Companies Contract relating to the license of any patent, copyright, trade secret or other Intellectual Property or Intellectual Property Right to or from any of the Acquired Companies (other than: (A) Permitted Inbound Non-Exclusive Licensesagreements between any of the Acquired Companies and its employees in connection with their employment in the current standard form made available to the Purchaser without any material deviation thereto; and (B) Permitted Outbound Non-Exclusive Licenses);
(viiContracts for Commercial Software or Open Source Code) each Acquired Company Contract relating to the hosting license of any website of any Acquired Company;
(viii) each Acquired Company Contract relating Software or Intellectual Property Rights to the advertising or promotion of the business of any of the Acquired Companies or pursuant to which any third parties advertise on any websites operated by any of the Acquired Companies;
(ixvii) each Acquired Company Companies Contract relating to the acquisition, sale, spin-off or outsourcing of any business unit or operation of any of the Acquired Companies;
(viii) each Acquired Companies Contract creating or relating to any partnership or joint venture or any Acquired Company Contracts relating to other similar arrangement for the pooling and sharing of revenues, profits, losses, costs or liabilities or any similar agreementliabilities;
(xix) each Acquired Company Companies Contract imposing any restriction on any of the Acquired Companies: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Person, ; (C) to sell any product or other asset to or perform any services for any other Person Person; or (D) to transact business or deal in any other manner with any other Person; or (C) to develop or distribute any technology;
(xix) each Acquired Company Companies Contract: (A) granting exclusive rights to license, market, sell sell, support or deliver any of the products or services of the Acquired Companies or of users of any marketplace, website or service of any of the Acquired CompaniesProduct; or (B) otherwise contemplating an exclusive relationship between any of the Acquired Company Companies and any other Person; or (C) involving the grant of “most favored nation” status to any Person or other preferential rights;
(xi) each Acquired Companies Contract relating to the Acquired Companies’ sales and marketing, advertising or promotional activities, including agreements creating or involving any agency relationship, sales representative, channel partner, co-marketing, distribution or reseller arrangement or franchise relationship that involve payments in any twelve (12) month period of more than $25,000;
(xii) each Acquired Company Companies Contract creating requiring future development or involving delivery of any agency relationship, distribution arrangement Intellectual Property Rights or franchise relationshipSoftware by any of the Acquired Companies;
(xiii) each Acquired Company Companies Contract related to enrollment in or participation in Federal Health Care Programs;
(xiv) each Acquired Companies Contract that is a customer Contract (A) for pharmacies for which the annual revenue is $100,000 or more for the twelve (12) month period ending June 30, 2016 or for which there are 75 or more covered locations under the Contract; (B) with a health plan; or (C) with a manufacturer;
(xv) each Acquired Companies Contract related to the provision of point of care or pharmacogenetic testing or clinical research;
(xvi) each Acquired Companies Contract with physicians, other sources of referrals, or recipients of referrals to or for items or services provided by any of the Acquired Companies;
(xvii) each Acquired Companies Contract regarding the acquisition, issuance, issuance or transfer or rights of any securities, securities and each Acquired Companies Contract affecting or dealing with any securities of any of the Acquired Companies including any restricted share agreements or escrow agreements;
(xivxviii) each Acquired Company Companies Contract involving any loan, guaranty, pledge, performance or completion bond or indemnity or surety arrangement;
(xix) any Acquired Companies Contract (A) imposing any confidentiality obligation on any of the Acquired Companies or on any other Person (other than indemnification (1) routine nondisclosure agreements entered into by any of the Acquired Companies in the ordinary course of business, (2) end user licenses in the current standard form disclosed to the Purchaser pursuant to Section 2.11(g) without any material deviation thereto and (3) immaterial Acquired Company Contracts with customers for Acquired Company Products in the standard form made available to the Purchaser without any material deviation thereto), (B) containing “standstill” or similar provisions arising inor (C) providing any right of first negotiation, right of first refusal or similar right to any Person;
(xx) any Acquired Companies Contract (A) with a customer, which together with any other Acquired Companies Contract with the same customer produced aggregate annual revenue of $20,000 or more for either of the twelve (12) month periods ending September 30, 2015 or September 30, 2016, that may not be terminated by any of the Acquired Companies (without penalty) within twelve (12) months of the Closing Date or (B) with a vendor or service provider that may not be terminated by any of the Acquired Companies (without penalty) within twelve (12) months of the Closing Date;
(xxi) any Acquired Companies Contract under which any of the Transactions would give rise to or expand any rights in favor of, or any obligations on the part of, any of the Acquired Companies or any other Person;
(xxii) each Acquired Companies Contract relating to the purchase or sale of any asset by or to, or the performance of any services by or for, any Related Party;
(xxiii) each Acquired Companies Contract relating to any liquidation or dissolution of any of the Acquired Companies; and
(xxiv) any Acquired Companies Contract that contemplates or involves: (A) the payment or delivery of cash or other consideration by any of the Acquired Companies in an amount or having a value in excess of $50,000; or (B) the performance of services by any of the Acquired Companies having a value in excess of $100,000 in the aggregate. (Contracts in the respective categories described in clauses “(i)” through “(xxiv)” above and identified, or required to be identified, on Part 2.12(a) of the Disclosure Schedule, all Contracts identified, or required to be identified, in Part 2.10(b) of the Disclosure Schedule, and all Acquired Companies Business Associate Agreements, regardless of whether or not required to be identified on the Disclosure Schedule, are referred to in this Agreement as “Material Contracts.”)
Appears in 1 contract
List of Contracts. Part 2.11(a) of the Disclosure Schedule accurately identifies, as of the Agreement Date:
(i) (A) each Acquired Company Entity Contract relating between any Acquired Entity and any Acquired Entity Service Provider pursuant to the employment ofwhich: (i) benefits would vest, amounts would become payable or the performance terms of services by, which would otherwise be altered by virtue of the consummation of the transactions contemplated by this Agreement (whether alone or upon the occurrence of any Acquired Company Employee (provided, however that Part 2.11(a)(i) will not identify “at-will” employment agreements on the form made available to Parent that do not require providing prior notice to the Acquired Company Employee prior to termination additional or any payment of severance in connection with termination, provided further that such agreements will constitute “Material Contract”subsequent events); (Bii) any Acquired Company Contract pursuant to which any of the Acquired Companies Entity is or may become obligated to make any severance, termination, termination indemnity or redundancy, retention, gross-up or similar payment to any Acquired Company Employee Entity Service Provider; or (other than post-termination benefits continuation coverage required by law); and (Ciii) any Acquired Company Contract pursuant to which any of the Acquired Companies Entity is or may become obligated to make any bonus bonus, incentive compensation or similar payment payments (other than payment in respect of salarysalary or base wages) to any Acquired Company EmployeeEntity Service Provider;
(ii) each any Acquired Company Entity Contract which provides for indemnification of with any officer, director, employee labor union or agentassociation representing any Acquired Entity Service Provider;
(iii) other than any Inbound Licenses and Outbound Licenses, each Acquired Company Entity Contract relating to the voting or registration rights, or rights of first refusal or any other rights or obligations of a stockholder of any of the Acquired Companies;
(iv) including each Acquired Company Contract relating to the merger, consolidation, reorganization or any similar transaction with respect to any of the Acquired Companies, including the acquisition, sale, spin off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired Companies;
Entity IP Contract): (vi) each Acquired Company Contract relating to the acquisition, transfer, sharingdevelopment, licensing, granting right to or development sharing of any Intellectual Property or Intellectual Property Right Rights (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any Acquired Entity); (ii) imposing any restriction on any Acquired Entity to develop or distribute any Intellectual Property or to use any Intellectual Property or Intellectual Property Rights; or (iii) contemplating the release of the Acquired Companies) Source Code to any Person other than those disclosed under Section 2.11(a)(viany Acquired Entity;
(iv) each Acquired Entity Contract relating to the merger, consolidation, reorganization or any similar transaction involving or with respect to any Acquired Entity;
(v) each Acquired Entity Contract relating to the acquisition or transfer of any Intellectual Property or Intellectual Property Rights (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any Acquired Entity), Permitted Inbound Nonother than Contracts for Shrink-Exclusive Licenses or Permitted Outbound Non-Exclusive LicensesWrap Code;
(vi) each Acquired Company Entity Contract relating to the license hosting of any patent, copyright, trade secret or other Intellectual Property or Intellectual Property Right to or from any of the Acquired Companies (other than: (A) Permitted Inbound Non-Exclusive Licenses; and (B) Permitted Outbound Non-Exclusive Licenses)Entity Product;
(vii) each Acquired Company Entity Contract relating to the hosting of any website of any Acquired Company;
(viii) each Acquired Company Contract relating primarily to the advertising or promotion of the business business, including telemarketing and database marketing, of any of the Acquired Companies Entity or pursuant to which any third parties advertise or have links to their branding or their websites displayed on any websites operated by Acquired Entity Web Site;
(viii) each Acquired Entity Contract relating to the acquisition, sale, spin-off or outsourcing of any business unit or operation of the any Acquired CompaniesEntity;
(ix) each Acquired Company Entity Contract creating or relating to any partnership or partnership, joint venture venture, strategic alliance or any Acquired Company Contracts relating to the sharing of revenues, profits, losses, costs or liabilities or any similar agreementarrangement;
(x) each Acquired Company Entity Contract imposing any restriction on any of the Acquired CompaniesEntity: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Personfrom, or to sell sell, market or promote any product or other asset to or perform any services for for, any other Person or Person; (C) to transact business or deal in any other manner with any other Person; or (CD) involving the grant of “most favored nation” status to develop any Person or any exclusive rights to acquire, provide, sell or distribute any technologyproduct or other asset or any services of any Acquired Entity to any Person;
(xi) each Acquired Company Contract: Entity Contract granting exclusive rights with respect to any Acquired Entity Product or Acquired Entity IP (A) including granting exclusive rights to license, market, sell sell, provide, distribute, support, make available or deliver any of the products Acquired Entity Product) or services of the Acquired Companies or of users of otherwise establishing any marketplace, website or service of any of the Acquired Companies; or (B) otherwise contemplating an exclusive relationship between any Acquired Company Entity and any other PersonPerson (including with respect to advertising);
(xii) each Acquired Company Entity Contract creating or involving any referral or agency relationship, sales representative, channel partner distribution or reseller arrangement or franchise relationship;
(xiii) each Acquired Company Entity Contract regarding the acquisition, issuance, issuance or transfer or rights of any securities, securities and each Acquired Entity Contract affecting or dealing with any securities of any Acquired Entity including any restricted share agreements or escrow agreements;
(xiv) each Acquired Company Entity Contract for the sale of any of the assets of any Acquired Entity other than in the ordinary course of business;
(xv) each Acquired Entity Contract involving any loan, guaranty, pledge, performance or completion bond or indemnity surety arrangement or otherwise relating to the incurrence, assumption or guarantee of any Indebtedness by any Acquired Entity or imposing an Encumbrance on any of the assets of any Acquired Entity;
(xvi) each lease, lease guaranty, sublease, license or other Acquired Entity Contract for the leasing, use or occupancy of the Properties;
(xvii) each Acquired Entity Contract relating to the purchase or sale of any asset by or to, or the performance of any services by or for, any Related Party (other than indemnification provisions arising inoffer letters, employment agreements, individual consulting agreements, individual contracting agreements and option agreements entered into in the ordinary course of business);
(xviii) each Acquired Entity Contract relating to any liquidation or dissolution of any Acquired Entity;
(xix) each Acquired Entity Contract pursuant to which any broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with any of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any Acquired Entity;
(xx) any Acquired Entity Contract with a bank, financial institution or lender;
(xxi) any (A) confidentiality, secrecy or non-disclosure Acquired Entity Contract (other than routine nondisclosure agreements entered into by the Company in the ordinary course of business); (B) Acquired Entity Contract containing “standstill” or similar provisions; or (C) Acquired Entity Contract providing any right of first negotiation, right of first refusal or similar right to any Person;
(xxii) all Acquired Entity Contracts with any Governmental Body;
(xxiii) any Acquired Entity Contract that contemplates or involves: (A) the payment or delivery of cash or other consideration by any Acquired Entity in an amount or having a value in excess of $[***] in the aggregate when taken together with all other Acquired Entity Contracts involving such Person or such Person’s Affiliates; or (B) the performance of services having a value in excess of $[***] in the aggregate when taken together with all other Acquired Entity Contracts involving such Person or such Person’s Affiliates (other than offer letters, employment agreements, individual consulting agreements, individual contracting agreements and option agreements entered into in the ordinary course of business);
(xxiv) each Acquired Entity Contract in settlement of any Legal Proceeding or other dispute;
(xxv) any Company Contract under which any of the transactions contemplated by this Agreement would give rise to or expand any rights in favor of, or any obligations on the part of, the Company or any other Person; and
(xxvi) any other Acquired Entity Contract that was entered into outside the ordinary course of business of any Acquired Entity and that is material to any Acquired Entity. Contracts in the respective categories described in clauses “(i)” through “(xxvi)” above, all Contracts identified, or required to be identified, in Part 2.11(a) of the Disclosure Schedule, all Contracts identified, or required to be identified, in Parts 2.10(d), 2.10(e) and 2.15(a) of the Disclosure Schedule (excluding the Unscheduled Inbound Licenses and Unscheduled Outbound licenses), and all Contracts entered into after the Agreement Date that would be required to be identified in Parts 2.10(d), 2.10(e), 2.11(a), or 2.15(a) of the Disclosure Schedule (excluding the Unscheduled Inbound Licenses and Unscheduled Outbound licenses) if entered into on or prior to the Agreement Date are collectively referred to in this Agreement as “Material Contracts.” Part 2.11(a)(i) of the Disclosure Schedule accurately identifies, as of the Agreement Date, each standard form of Acquired Entity Contract for the employment or service of any individual on a full-time, part-time, consulting or other basis and any such Contract that materially deviates from the Company’s standard forms of employment or individual service provider agreements.
Appears in 1 contract
Samples: Merger Agreement (Splunk Inc)
List of Contracts. Part 2.11(a) of the Disclosure Schedule accurately identifies:
(i) (A) each Acquired Company Contract relating to the employment of, or the performance of services by, any Acquired Company Employee (provided, however that Part 2.11(a)(i) will not identify other than “at-at will” employment agreements entered into in the ordinary course of business on the Company’s standard form of offer letter in the form made available to Parent that do not require providing prior notice to the Acquired Company Employee prior to termination or without any payment of severance in connection with termination, provided further that such agreements will constitute “Material Contract”material deviation thereto); (B) any Acquired Company Contract pursuant to which any of the Acquired Companies is or may become obligated to make any severance, termination or similar payment to any Acquired Company Employee (other than post-termination benefits continuation coverage required by lawapplicable Legal Requirements); and (C) any Acquired Company Contract pursuant to which any of the Acquired Companies is or may become obligated to make any bonus or similar payment (other than payment in respect of salary) to any Acquired Company Employee;
(ii) each Acquired Company Contract which provides for indemnification of any officer, director, employee or agent;
(iii) each Acquired Company Contract relating to the voting or registration rights, or rights of first refusal or and any other rights or obligations of a stockholder of any of the Acquired Companies;
(iv) each Acquired Company Contract relating to the merger, consolidation, reorganization or any similar transaction with respect to any of the Acquired Companies, including the acquisition, sale, spin off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired Companies;
(v) each Acquired Company Contract relating to the acquisition, transfer, sharing, development or development sharing of any technology, Intellectual Property or Intellectual Property Right (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Acquired Companies) (other than those disclosed under Section 2.11(a)(via standard form of Acquired Company IP Contact made available to Parent without material deviation under which any Acquired Company retains sole ownership of the Intellectual Property or Intellectual Property Right developed under such agreement), Permitted Inbound Non-Exclusive Licenses or Permitted Outbound Non-Exclusive Licenses;
(vi) each Acquired Company Contract relating to the license of any patent, copyright, trade secret or other Intellectual Property or Intellectual Property Right to or from any of the Acquired Companies (other than: (A) Permitted Inbound Non-Exclusive Licensesagreements between the Acquired Company and a third party pursuant to a standard form Acquired Company IP Contract made available to Parent without material deviation; and (B) Permitted Outbound Nonnon-Exclusive Licensesdisclosure, evaluation and confidentiality agreements that are entered into in the ordinary course of business);
(vii) each Acquired Company Contract relating to the hosting of any website of any Acquired Company;
(viii) each Acquired Company Contract relating to the advertising or promotion of the business of any of the Acquired Companies or pursuant to which any third parties advertise on any websites operated by any of the Acquired Companies;
(ix) each Acquired Company Contract relating to the acquisition, sale, spin-off or outsourcing of any Subsidiary or business unit or operation of any of the Acquired Companies;
(x) each Acquired Company Contract creating or relating to any partnership or joint venture or any Acquired Company Contracts relating to the sharing of revenues, profits, losses, costs or liabilities or any similar agreementliabilities;
(xxi) each real estate lease of any of the Acquired Companies;
(xii) each Acquired Company Contract imposing any restriction on any of the Acquired Companies: (A) to compete with or solicit any customer of, any other Person; (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person; (C) to solicit, hire or retain any Person as an employee, consultant or individual independent contractor; or (CD) to develop or distribute any technology;
(xixiii) each Acquired Company Contract: (A) granting exclusive rights to license, market, sell or deliver any of the products or services of the Acquired Companies or of users of any marketplace, website or service of any of the Acquired Companies; or (B) otherwise contemplating an exclusive relationship between any Acquired Company and any other Person;
(xiixiv) each Acquired Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(xiiixv) each Acquired Company Contract regarding the acquisition, issuance, issuance or transfer or rights of any securities, including the provision of any right of first negotiation, right of first refusal, or similar right, and each Acquired Company Contract affecting or dealing with any securities of any of the Acquired Companies including any restricted share agreements or escrow agreements;
(xivxvi) each Acquired Company Contract involving any loan, guaranty, pledge, performance or completion bond or indemnity or surety arrangement, or any similar obligation;
(xvii) each Acquired Company Contract relating to the purchase or sale of any asset by or to, or the performance of any services by or for, any Related Party;
(xviii) each Acquired Company Contract relating to any liquidation or dissolution of any Acquired Company;
(xix) any Acquired Company Contract that contemplates or involves: (A) the payment or delivery of cash or other than indemnification provisions arising inconsideration by any Acquired Company in an amount or having a value in excess of US $10,000 individually; or (B) the performance of services having a value in excess of US $10,000 individually; and
(xx) any other Acquired Company Contract that was entered into outside the ordinary course of business or was inconsistent with the past practices of any of the Acquired Companies that is material to the operation or business of the Acquired Companies. (Contracts in the respective categories described in clauses “(i)” through “(xx)” above and all Contracts identified, or required to be identified, in Part 2.11(a) of the Disclosure Schedule are referred to in this Agreement as “Material Contracts.”)
Appears in 1 contract
Samples: Merger Agreement (Yelp Inc)
