Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) of the Seller Disclosure Schedule, no Seller has continuing obligations under, is a party to or is bound by any Contract related in any way to the Acquired Business Assets that: Table of Contents (i) is a collective bargaining agreement, (ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein), (iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, (iv) is an 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, (v) is an agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein, (vi) is a fidelity or surety bond or completion bond, (vii) is a lease of personal property having annual lease payments individually in excess of $10,000, (viii) is an agreement of indemnification, warranty or guaranty other than in the ordinary course of business, (ix) contains any covenant limiting the freedom of any Seller or the Compass Business to engage in any line of business or to compete with any person, (x) relates to capital expenditures and involves future payments in excess of $10,000, (xi) relates to the disposition or acquisition of material assets or any interest in the Compass Business enterprise outside the ordinary course of business, (xii) is a mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money or extension of credit, (xiii) is a distribution, joint marketing or development agreement, (xiv) is an agreement, contract or commitment with any customer or vendor which, during the last two fiscal years, accounted, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contents (xv) is an agreement, contract or commitment that involves $10,000 or more or is not cancelable without penalty within thirty (30) days. (b) As of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt of any required consent set forth in Section 3.2(c) of the Seller Disclosure Schedule) will continue in full force and effect following the transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Somera Communications Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) 2.14 of the Seller Company Disclosure Schedule, no Seller has continuing obligations under, the Company is not a party to or to, nor is it bound by any Contract related in any way to of the Acquired Business Assets that: Table of Contentsfollowing (each, a "MATERIAL CONTRACT"):
(ia) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, or consulting or sales agreement, contract contract, or commitment with a firm or other organization,;
(vb) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,Contemplated Transactions;
(vic) is a any fidelity or surety bond or completion bond,;
(viid) is a any lease of personal or movable property having annual lease payments individually a value in excess of $10,000,50,000 individually or $100,000 in the aggregate;
(viiie) is an any agreement of indemnification, warranty indemnification or guaranty other than in the ordinary course of business,guaranty;
(ixf) contains any covenant limiting the freedom of any Seller agreement, contract or the Compass Business to engage in any line of business or to compete with any person,
(x) relates commitment relating to capital expenditures and involves involving future payments in excess of $10,000,50,000 individually or $100,000 in the aggregate;
(xig) relates to the disposition any agreement, contract or acquisition of material assets or any interest in the Compass Business enterprise commitment outside the ordinary course of the Company's business,;
(xiih) is a mortgageany mortgages, indenturehypothecations, loan indentures, guarantees, loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,;
(xiiii) is any purchase order or contract for the purchase of materials involving in excess of $50,000 individually or $100,000 in the aggregate;
(j) any agreement containing covenants or other obligations granting any person exclusive rights, "most favored nations" or similar terms or binding the Company to a covenant not to compete or restricting any operation of its business or containing any similar terms;
(k) any dealer, distribution, joint marketing or development agreement,;
(xivl) is an agreementany sales representative, contract or commitment with any customer or vendor whichoriginal equipment manufacturer, during the last two fiscal yearsmanufacturing, accountedvalue added, remarketer, reseller, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicableindependent software vendor, or Table other agreement for use or distribution of Contentsthe products, technology or services of the Company;
(xvm) is an any IP Agreements; or
(n) any other agreement, contract or commitment that (i) involves the 5 largest customers of the Company during the current fiscal year to date, or (ii) involves $10,000 50,000 individually or more or $100,000 in the aggregate and is not cancelable without penalty within thirty (30) days.
(b) As of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt of any required consent . Except as set forth in Section 3.2(c) 2.14 of the Seller Company Disclosure Schedule) , the consummation of the Contemplated Transactions will continue not violate nor result in full force and effect following the transactions contemplated by this Agreementbreach, in each case without any breach modification, cancellation, termination or suspension of any terms of the agreements referenced in this Section 2.14, entitle the other party -41- or conditions thereof parties to such agreements to terminate such agreements or require the forfeiture or impairment payment of any rights thereunder, (y) each Seller will have performed all material obligations additional amounts or consideration other than amounts which Company would otherwise be required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaserpay.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth provided in Section 3.13(a) 2.14 of the Seller Disclosure Schedule, no Seller has continuing obligations under, ------------ the Company is not a party to or to, nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, or consulting or sales agreement, contract contract, or commitment with a firm or other organization,;
(vii) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having annual lease payments individually a value in excess of $10,000,10,000 individually or $25,000 in the aggregate;
(viiiv) is an agreement any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of indemnification$10,000 individually or $25,000 in the aggregate, warranty or guaranty other than except as entered into in the ordinary course of business,, consistent with past practice;
(ixvi) contains any covenant limiting the freedom of any Seller agreement, contract or the Compass Business to engage in any line of business or to compete with any person,
(x) relates to capital expenditures and involves future payments in excess of $10,000,
(xi) relates commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company's business,;
(xiivii) is a mortgageany mortgages, indentureindentures, loan guarantees, loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,;
(xiiiviii) is a any purchase order or contract for the purchase of materials involving in excess of $10,000 individually or $25,000 in the aggregate, except as entered into in the ordinary course of business consistent with past practice;
(ix) any construction contracts;
(x) any dealer, distribution, joint marketing or development agreement,; or
(xivxi) is an agreementany sales representative, contract or commitment with any customer or vendor whichoriginal equipment manufacturer, during the last two fiscal yearsvalue added, accountedremarketer, reseller, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicableindependent software vendor, or Table of Contents
(xv) is an agreement, contract other agreement for use or commitment that involves $10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) As distribution of the Closing DateCompany's products, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt of any required consent set forth in Section 3.2(c) of the Seller Disclosure Schedule) will continue in full force and effect following the transactions contemplated by this Agreement, in each case without any breach of any terms technology or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaser.services; or
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lantronix Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) of on Schedule 2.12(a), the Seller Disclosure Schedule, no Seller has continuing obligations underCompany does not have, is not a party to or nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a any collective bargaining agreement,agreements;
(ii) contains any agreements or arrangements that contain any severance pay, pay or post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),obligations;
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) is an any employment or consulting agreement, agreement or contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreementagreement or contract, contract or commitment with under which a firm or other organization,organization provides services to the Company pursuant to which the Company is obligated to make payments in excess of $10,000 per year;
(v) is an any agreement or plan, including, without limitation, any stock option plan, stock option agreements, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(vi) is a any fidelity or surety bond or completion bond,;
(vii) is a any lease of personal property having annual lease payments a value individually in excess of $10,000,;
(viii) is an any agreement of indemnification, warranty indemnification or guaranty other than in the ordinary course of business,guaranty;
(ix) contains any agreement, contract or commitment containing any covenant limiting the freedom of any Seller or the Compass Business Company to engage in any line of business or to compete with any person,;
(x) relates any agreement, contract or commitment relating to capital expenditures and involves involving future payments in excess of $10,000,10,000 individually or $20,000 in the aggregate;
(xi) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company's business,;
(xii) is a mortgageany mortgages, indentureindentures, loan loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,, including guaranties referred to in clause (viii) hereof;
(xiii) is a any purchase order or contract for the purchase of raw materials involving $10,000 or more;
(xiv) any construction contract;
(xv) any material distribution, joint marketing or development agreement,;
(xivxvi) is an any agreement, contract or commitment with pursuant to which the Company has granted or may grant in the future, to any customer party a source-code license or vendor which, during the last two fiscal years, accounted, option or is expected other right to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue use or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contentsacquire source-code; or
(xvxvii) is an any other agreement, contract or commitment that involves $10,000 20,000 or more or is not cancelable without penalty within thirty (30) days.
(b. Schedule 2.12(a) As sets forth a list of the Closing DateCompany's top 15 customers according to revenue for the fiscal year ended December 31, (x) 1999, and each Contract (other than any Contract constituting customer with which the Company currently has an Excluded Asset) will agreement that the Company in good faith expects to be a valid and binding obligation one of the parties thereto and in full force and effectCompany's top 15 customers for the fiscal year ending December 31, 2000, and (assuming receipt a list of any required consent set forth in Section 3.2(c) of all effective agreements between such customer and the Seller Disclosure Schedule) will continue in full force Company. Except for such alleged breaches, violations and effect following the transactions contemplated by this Agreementdefaults, in each case without any breach of any terms and events that would constitute a breach, violation or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will not be (default with or without the lapse of time or the time, giving of notice, or both) , all of which are noted in breach Schedule 2.12(b), the Company has not breached, violated or default thereunder and (z) each other party to each Contract (other than defaulted under, or received notice that it has breached, violated or defaulted under, any Contract constituting an Excluded Asset) will have performed all obligations of the terms or conditions of any agreement, contract or commitment required to be performed set forth on Schedule 2.12(a) or Schedule 2.12(b) (any such agreement, contract or commitment, a "Contract") which would result in a Material Adverse Effect. Each Contract is in full force and effect and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by such any party under such assigned Contracts, and will not be (with or without obligated to the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to PurchaserCompany pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Carrier Access Corp)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a3.15(a) of the Seller Disclosure ScheduleLetter (specifying the appropriate subparagraph), no Seller has continuing obligations under, the Company is not a party to or to, nor is it bound by any Contract related in any way to of the Acquired Business Assets that: Table of Contents
following (each, a “Material Contract”): (i) any Employment Agreement other than any agreement or offer letter that is a collective bargaining agreement,
terminable at-will, without prior notice or penalty, including severance or termination payments; (ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an employment or consulting agreement, contract or commitment to grant any severance or termination pay or benefits (in cash or otherwise) to any Employee; (iii) any settlement or conciliation agreement with an employee Employees, other than settlement agreements for cash only (which has been paid) and do not exceed $25,000; (iv) any collective bargaining agreements, labor union Contracts (including any Contract or individual consultant or salesperson or consulting or sales agreementagreement with any works council, contract or commitment with a firm trade union, or other organization,
labor-relations entity) or similar Contract (each a “Labor Agreement”); (v) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,
; (vi) is a any fidelity or surety bond or completion bond,
; (vii) is a any lease of personal property or equipment having annual lease payments individually a value in excess of $10,000,
50,000 individually or in the aggregate; (viii) is an any agreement of indemnificationindemnification or guaranty, warranty but excluding agreements of indemnification or guaranty other than with respect to the infringement by the Company Products of the Intellectual Property Rights of third parties that are contained in the Company’s written agreements with its customers that have been entered into in the ordinary course of business,
; (ix) contains any covenant limiting the freedom of any Seller agreement, contract or the Compass Business to engage in any line of business or to compete with any person,
(x) relates commitment relating to capital expenditures and involves involving future payments in excess of $10,000,
50,000 individually or in the aggregate; (xix) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company’s business,
; (xiixi) is a mortgageany mortgages, indentureindentures, loan guarantees, loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,
; (xii) any purchase order, contract or other commitment obligating the Company to purchase materials or services at a cost in excess of $50,000 individually or in the aggregate; (xiii) is a distribution, joint marketing or development agreement,
(xiv) is an agreement, contract or commitment with any customer or vendor which, during the last two fiscal years, accounted, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contents
(xv) is an agreement, contract or commitment that involves $10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) As of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt of any required consent agreement set forth in Section 3.2(c) 3.11 of the Seller Disclosure ScheduleLetter; (xiv) will continue in full force and effect following the transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is agreement providing a party and will not be (customer with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaser.refund rights;
Appears in 1 contract
Sources: Unit Purchase Agreement (Yext, Inc.)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) of the Seller Company Disclosure Schedule, no Seller has continuing obligations under, Group Company is a party to or is otherwise bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an 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,;
(vii) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement the Transaction Documents or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,the Transaction Documents;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having annual lease payments individually in excess of $10,000,to any Group Company;
(viiiv) is an agreement of indemnificationany agreement, warranty contract or guaranty other than in the ordinary course of business,
(ix) contains commitment containing any covenant limiting the freedom of any Seller or the Compass Business Group Company to engage in any line of business or to compete with any person,
(xvi) relates any agreement, contract or commitment relating to material capital expenditures and involves involving future payments in excess of $10,000,payments;
(xivii) relates any agreement, contract or commitment relating to the leasing, licensing, disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of any Group Company business,;
(xiiviii) is a mortgageany mortgages, indentureindentures, loan guarantees, loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,;
(ix) any purchase order or contract for the purchase of materials outside the ordinary course business consistent with past practice, but in any event not for more than forty thousand U.S. dollars ($40,000);
(x) any construction contracts;
(xi) any dealer, agency, distribution, joint marketing, development or indemnification agreement;
(xii) any sales representative, original equipment manufacturer, value added, remarketer, reseller or other agreement for distribution of any Group Company's products or services, or the products or services of any person;
(xiii) is a distribution, joint marketing or development agreement,
(xiv) is an agreement, contract or commitment with any customer or vendor which, during the last two fiscal years, accounted, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contents
(xv) is an agreement, contract or commitment that involves or that could reasonably be expected to involve (i) aggregate payments by any Group Company, or the receipt by any Group Company, of forty thousand U.S. dollars ($10,000 40,000) or more individually or in the aggregate and that is not cancelable without penalty within thirty (30) calendar days, (ii) minimum purchase commitments by any Group Company, or (iii) ongoing service or support obligations and that are not cancelable without penalty or refund within third (30) calendar days; or
(xiv) any agreement under which such Group Company has made any representations or warranties whose time limits have not yet expired in connection with the acquisition, disposal or any other transfer of shares or other assets or under which such Group Company could be held liable in connection with such representations or warranties under guarantees, suretyships or similar engagements or in any other way, and there are no claims of third parties based on such representations or warranties, or such guarantees, suretyships or similar engagements, which may be set off against claims of any of the Group Companies.
(b) As Each Group Company is in material compliance in all respects with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt terms or conditions of any required consent set forth in Section 3.2(c) agreement, contract, covenant, instrument, lease, license or commitment to which any Group Company is a party or by which it is bound (each, a "COMPANY CONTRACT"), nor is any Group Company or any Selling Shareholder aware of any event that would constitute such a breach, violation or default with the Seller Disclosure Schedule) will continue lapse of time, giving of notice or both. Each Company Contract is in full force and effect following and, to the transactions contemplated knowledge of the Selling Shareholders, is not subject to any material default thereunder by this Agreement, in each case without any breach of party obligated to any terms Group Company pursuant thereto. Each Group Company has obtained or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it obtain prior to the Closing Date under each Contract all necessary consents, waivers and approvals of the parties listed in EXHIBIT F as are required for the Company Contracts with such parties to remain in effect without modification after the Acquisition.
(other than any Contract constituting an Excluded Assetc) to which it is a party and will not be (with or without the lapse of time or the giving of noticeNo Group Company, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contractsof its directors, and will not be (with or without the lapse of time or the giving of noticeofficers, employees, representatives, or bothagents has for the purpose of securing any contract or advantage to any Group Company given or offered any bribe, kick-back, or any corrupt, unlawful or immoral payment or contribution.
(d) Except as set forth in breach or default thereunder. True and complete copies of each Contractthe Company Disclosure Schedule, if written, required no Company Contract has been entered into otherwise than pursuant to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchasernormal "arm's length" commercial terms.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) 2.15 of the Seller Disclosure ScheduleSchedule (specifying the appropriate paragraph), no Seller has continuing obligations under, neither the Company nor any of its Subsidiaries is a party to or to, nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any consulting or sales agreement, contract contract, or commitment with a firm or other organization,;
(vii) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan, stock issuance plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be acceleratedaccelerated or trigerred, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having annual lease payments individually a value in excess of $10,000,5,000 individually or $20,000 in the aggregate;
(viiiv) is an any agreement of indemnification, warranty indemnification or guaranty other than in the ordinary course of business,guaranty;
(ixvi) contains any covenant limiting the freedom of any Seller agreement, contract or the Compass Business to engage in any line of business or to compete with any person,
(x) relates commitment relating to capital expenditures and involves involving future payments in excess of $10,000,10,000 individually or $50,000 in the aggregate;
(xivii) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company’s business,;
(xiiviii) is a mortgageany mortgages, indentureindentures, loan guarantees, loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,;
(xiiiix) is a any purchase order or contract for the purchase of materials involving in excess of $10,000 individually or $50,000 in the aggregate;
(x) any construction contracts;
(xi) any dealer, distribution, joint marketing marketing, strategic alliance, affiliate or development agreement,;
(xivxii) is an any agreement, contract or commitment with to alter the Company’s interest in any customer Subsidiary, corporation, association, joint venture, partnership or vendor whichbusiness entity in which the Company directly or indirectly holds any interest;
(xiii) any sales representative, during the last two fiscal yearsoriginal equipment manufacturer, accountedmanufacturing, value added, remarketer, reseller, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicableindependent software vendor, or Table other agreement for use or distribution of Contentsthe products, technology or services of the Company or any of its Subsidiaries; or
(xvxiv) is an any other agreement, contract or commitment that involves $10,000 individually or $50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) days.
(b) As of Each Contract disclosed in the Closing DateDisclosure Schedule or required to be disclosed pursuant to this Section 2.15 (each, (xa “Material Contract,” and collectively, the “Material Contracts”) each Contract (other than any Contract constituting an Excluded Asset) will be is a valid and binding obligation agreement of the parties thereto and in full force and effectCompany or its Subsidiaries, as the case may be, and (assuming receipt of any required consent set forth in Section 3.2(c) of the Seller Disclosure Schedule) will continue is in full force and effect following with respect to the transactions contemplated by this AgreementCompany or any Subsidiaries of the Company and, to the Knowledge of the Company, any other party thereto, and none of the Company, any Subsidiaries of the Company or, to the Knowledge of the Company, any other party thereto is in each case without any default or breach under the terms of any terms or conditions thereof or the forfeiture or impairment of any rights thereundersuch Material Contract, (y) each Seller will have performed all material obligations required to be performed by it prior and, to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will not be (Knowledge of the Company, no event or circumstance has occurred that, with notice or without the lapse of time or the giving both, could reasonably be expected to constitute any event of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contractsuch Material Contract have been delivered to Parent.
(c) The Company and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the date hereof, if writtenand to the Knowledge of the Company, required without giving effect to the Merger, the Company will fulfill, when due, all of its obligations under the Material Contracts that remain to be listed in Section 1.2(a)(iiperformed after the date hereof.
(d) All outstanding indebtedness of the Seller Disclosure Schedule have been provided to PurchaserCompany or its Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epicor Software Corp)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) of the Seller Disclosure ScheduleAccurate has previously advised Gateway, no Seller has continuing obligations under, Accurate is not a party to or nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an 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,;
(vii) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having with fixed annual lease rental payments individually in excess of $10,000,;
(viiiv) is an agreement of indemnificationany agreement, warranty contract, commitment or guaranty other than in the ordinary course of business,
(ix) contains grant containing any covenant limiting the freedom of any Seller or the Compass Business Accurate to engage in any line of business or to compete with any person,;
(xvi) relates any agreement, contract or commitment relating to capital expenditures and involves involving future payments in excess of $10,000,10,000 either individually or in the aggregate;
(xivii) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of Accurate's business,;
(xiiviii) is a any mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money, the extension of credit or placing of liens on any assets of Accurate;
(ix) any guaranty of any obligation for borrowed money or extension of credit,otherwise;
(xiiix) is a any purchase order or contract for the purchase of materials involving in excess of $10,000 either individually or in the aggregate;
(xi) any dealer, distribution, joint marketing or development agreement,;
(xii) any sales representative, original equipment manufacturer, value added, remarketing or other agreement for distribution of Accurate's products or services;
(xiii) any collective bargaining agreement or contract with any labor union;
(xiv) is an agreementany bonus, contract pension, profit sharing, retirement or commitment with any customer or vendor which, during the last two fiscal years, accounted, or is expected to account during fiscal year 2002, for more than 10% other form of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contentsdeferred compensation plan;
(xv) is an any medical insurance or similar plan; or
(xvi) any other agreement, contract contract, commitment or commitment that involves grant pursuant to which the obligations of any party thereto is in excess of $10,000 or more or is not cancelable without penalty within thirty (30) days10,000.
(b) As Accurate is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt terms or conditions of any required consent set forth in Section 3.2(c) agreement, contract, grant, covenant, instrument, lease, license or commitment to which Accurate is a party or by which its assets are bound (collectively, a "Contract"), nor is either Shareholder aware of any event that would constitute such a breach, violation or default with the Seller Disclosure Schedule) will continue lapse of time, giving of notice or both. Each Contract is in full force and effect following and is not subject to any default thereunder by any party obligated to Accurate pursuant thereto. Accurate has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder for such Contracts to remain in effect without modification or termination after the Closing. Following the Closing Date, Accurate will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which Accurate would otherwise be required to pay had the transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will Agreement not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaseroccurred.
Appears in 1 contract
Sources: Share Exchange Agreement (Gateway International Holdings Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) 2.16 of the Seller Disclosure Schedule, no Seller has continuing obligations under, Schedule (specifying the appropriate paragraph):
(a) neither the Company nor any of its Subsidiaries is a party to or to, nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance payemployment, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor, or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, contract contract, or commitment with a firm or other organization,;
(vii) is an any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having annual lease payments individually a value in excess of $10,000,10,000 individually or $50,000 in the aggregate;
(viiiv) is an any agreement of indemnification, warranty indemnification or guaranty other than in the ordinary course of business,guaranty;
(ixvi) contains any covenant limiting the freedom of any Seller agreement, contract or the Compass Business to engage in any line of business or to compete with any person,
(x) relates commitment relating to capital expenditures and involves involving future payments in excess of $10,000,10,000 individually or $50,000 in the aggregate;
(xivii) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company’s business,;
(xiiviii) is a mortgageany mortgages, indentureindentures, loan guarantees, loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,;
(xiiiix) is a any purchase order or contract for the purchase of materials involving in excess of $10,000 individually or $50,000 in the aggregate;
(x) any construction contracts;
(xi) any dealer, distribution, joint marketing marketing, strategic alliance, affiliate or development agreement,;
(xivxii) is an any agreement, contract or commitment with to alter the Company’s interest in any customer Subsidiary, corporation, association, joint venture, partnership or vendor whichbusiness entity in which the Company directly or indirectly holds any interest;
(xiii) any sales representative, during the last two fiscal yearsoriginal equipment manufacturer, accountedmanufacturing, value added, remarketer, reseller, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicableindependent software vendor, or Table other agreement for use or distribution of Contentsthe products, technology or services of the Company or any of its Subsidiaries;
(xvxiv) is an any other agreement, contract or commitment that involves $10,000 individually or $50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) As Each Contract to which the Company or any of the Closing Date, its Subsidiaries is a party or any of their respective properties or assets (xwhether tangible or intangible) each Contract (other than any Contract constituting an Excluded Asset) will be is subject is a valid and binding obligation agreement of the Company or its Subsidiaries, as the case may be, enforceable against each of the parties thereto and in full force and effectaccordance with its terms, and (assuming receipt of any required consent set forth in Section 3.2(c) of the Seller Disclosure Schedule) will continue is in full force and effect following with respect to the transactions contemplated by this AgreementCompany or the applicable Subsidiary and, to the Knowledge of the Company and the Shareholders, any other party thereto. The Company and each of its Subsidiaries are in each case without compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any breach of any the terms or conditions thereof of any such Contract, nor to the Knowledge of the Company or the forfeiture Shareholders is any party obligated to the Company or impairment any of its Subsidiaries pursuant to any such Contract subject to any breach, violation or default thereunder, nor does the Company or any Shareholder have Knowledge of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will not be (event that with or without the lapse of time or the time, giving of noticenotice or both would constitute such a breach, or both) in breach violation or default thereunder and (z) each by the Company, its Subsidiaries or any such other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunderparty. True and complete copies of each Contract, if written, Contract disclosed in the Disclosure Schedule or required to be listed in disclosed pursuant to this Section 1.2(a)(ii2.16 (each a “Material Contract” and collectively, the “Material Contracts”) of the Seller Disclosure Schedule have been provided delivered to Purchaser.
(c) The Company and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the date hereof, and to the Knowledge of the Company and the Shareholders, without giving effect to the Acquisition, the Company will fulfill, when due, all of its obligations under the Material Contracts that remain to be performed after the date hereof.
(d) All outstanding indebtedness of the Company or its Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) of the Seller Disclosure Schedule, no Seller has continuing obligations under, The Company is a not party to or nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an 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,;
(vii) is an any agreement or plan, including, including without limitation, limitation any stock option plan, stock appreciation rights plan or purchase plan with respect to capital stock purchase planof the Company, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having an annual lease payments individually rental rate in excess of $10,000,
(viii) is an agreement of indemnification, warranty 10,000 individually or guaranty other than $25,000 in the ordinary course of business,
aggregate; (ixv) contains any covenant limiting the freedom of any Seller agreement, contract or the Compass Business to engage in any line of business or to compete with any person,
(x) relates commitment relating to capital expenditures and involves involving future payments in excess of $10,000,10,000 individually or $25,000 in the aggregate;
(xiv) relates any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $10,000 individually or $25,000 in the aggregate;
(vi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company's business,;
(xiivii) is a mortgageany mortgages, indentureindentures, loan guarantees, loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,;
(xiiiviii) is a any purchase order or contract for the purchase of materials involving in excess of $10,000 individually or $25,000 in the aggregate;
(ix) any construction contracts;
(x) any dealer, distribution, joint marketing or development agreement,;
(xivxi) is an agreementany sales representative, contract original equipment manufacturer, value added, remarketer, reseller or commitment with any customer independent software vendor or vendor whichother agreement for use or distribution of the Company's products, during the last two fiscal years, accounted, technology or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contentsservices; or
(xvxii) is an any other agreement, contract or commitment that involves $5,000 individually or $10,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) calendar days.
(b) As The Company is in material compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt terms or conditions of any required consent set forth in Section 3.2(c) agreement, contract, covenant, instrument, lease, license or commitment to which it is party or by which it is bound (collectively a "Contract"), nor is the Company, the Stockholders or the Principal aware of any event that would constitute such a breach, violation or default with the Seller Disclosure Schedule) will continue lapse of time, giving of notice or both. Each Contract is in full force and effect following and is not subject to any default thereunder, nor, to the Knowledge of the Company, is any party obligated to the Company pursuant thereto subject to any default thereunder.
(c) The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger or for such Contracts to remain in effect without modification, limitation or alteration after the Effective Time. Following the Effective Time, the Company 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 transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will Agreement not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaseroccurred.
Appears in 1 contract
Sources: Merger Agreement (Xicor Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(aSections 2.13(g), 2.13(h) or 2.14(a) of the Seller Disclosure Schedule, no Seller has continuing obligations underas of the date hereof, the Company is not a party to or nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an employment or consulting agreement, contract or commitment commitment, other than confidentiality agreements, with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(vii) is an any agreement or plan, including, without limitation, any stock option planStock Option Plans, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,
(viiii) is a any fidelity or surety bond or completion bond,
(viiiv) is a any lease of personal property having annual lease payments a value individually in excess of $10,00050,000 or $100,000 in the aggregate,
(viiiv) is an agreement of indemnificationany agreement, warranty contract or guaranty other than in the ordinary course of business,
(ix) contains commitment containing any covenant limiting the freedom of any Seller or the Compass Business Company to engage in any line of business or to compete with any person,
(xvi) relates any agreement, contract or commitment relating to capital expenditures and involves involving future payments in excess of $10,000250,000 individually or $1,000,000 in the aggregate,
(xivii) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company's business,
(xiiviii) is a mortgageany mortgages, indentureindentures, loan loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,
(xiiiix) is a any purchase order or contract for the purchase of materials involving in excess of $250,000 individually,
(x) any construction contracts involving future obligation of the Company in excess of $250,000 individually,
(xi) any dealer, distribution, joint marketing or development agreement,
(xivxii) is an agreementany sales representative, contract original equipment manufacturer, value added, remarketer, reseller or commitment with any customer independent software vendor or vendor whichother agreement for use or distribution of the Company's products, during the last two fiscal yearstechnology or services, accounted, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contentsor
(xvxiii) is an any other agreement, contract or commitment that involves $10,000 or more 250,000 individually or is not cancelable without penalty within thirty (30) days.
(b) As The Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt of any required consent set forth in Section 3.2(c) of the Seller Disclosure Schedule) will continue in full force and effect following the transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunderagreement, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) contract, covenant, instrument, lease, license or commitment to which it is a party and will not be or by which it is bound (collectively a "Contract"), nor does the Company have Knowledge of any event that would constitute such a breach, violation or default with or without the lapse of time or the time, giving of noticenotice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or both) will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in breach connection with the Merger or default thereunder and (z) each other party for such Contracts to each Contract (remain in effect without modification after the Closing. Following the Effective Time, the Company will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than any Contract constituting an Excluded Asset) will have performed all obligations ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurred. and all consents, waivers, assignments and approvals under any of the Contracts as may be performed by such party under such assigned Contracts, and will not be (required in connection with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed Merger are set forth in Section 1.2(a)(ii2.14(c) of the Seller Disclosure Schedule have been provided to PurchaserSchedule.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (E Piphany Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(aSchedule 2.14(a) of the Disclosure Schedule sets forth the following contracts or agreements (whether written or oral) to which the Seller Disclosure Schedule, no Seller has continuing obligations under, is a party to or is bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an 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,
(vii) is an any agreement concerning confidentiality,
(iii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,
(viiv) is a any fidelity or surety bond or completion bond,
(viiv) is a any lease of personal property having an annual lease payments value individually in excess of $10,00010,000 or $50,000 in the aggregate,
(viiivi) is an agreement of indemnificationany agreement, warranty contract or guaranty other than in the ordinary course of business,
(ix) contains commitment containing any covenant limiting the freedom of any the Seller or the Compass Business to engage in any line of business or to compete with any person,
(xvii) relates any agreement, contract or commitment relating to capital expenditures and involves involving future annual payments in excess of $10,00010,000 individually or $50,000 in the aggregate,
(xiviii) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Seller's business,
(xiiix) is a mortgageany mortgages, indentureindentures, loan loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,
(xiiix) is a any purchase order or contract for the purchase of materials involving annually in excess of $10,000 individually or $50,000 in the aggregate,
(xi) any construction contracts,
(xii) any dealer, distribution, joint marketing or development agreement,
(xiii) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use or distribution of the Seller's products, technology or services, or
(xiv) is an agreement, contract or commitment with any customer or vendor which, during the last two fiscal years, accounted, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contents
(xv) is an other agreement, contract or commitment that involves annual payments of $10,000 individually or $50,000 in the aggregate or more or is not cancelable without penalty within thirty (30) days.
(b) As The Seller is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt of any required consent set forth in Section 3.2(c) of the Seller Disclosure Schedule) will continue in full force and effect following the transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereundermaterial agreement, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) contract, covenant, instrument, lease, license or commitment to which it is a party and will not be or by which it is bound (each, a "Contract"), nor is the Seller or the -------- Principal Stockholders aware of any event that would constitute such a breach, violation or default with or without the lapse of time or the time, giving of noticenotice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Seller pursuant thereto. The Seller has obtained, or both) will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in breach connection with the Acquisition or default thereunder and (z) each other party for such Contracts to each Contract (remain in effect without modification after the Closing. Following the Closing, Buyer will be permitted to exercise all of the rights of Seller under the Contracts without the payment of any additional amounts or consideration other than any Contract constituting an Excluded Asset) will have performed all obligations ongoing fees, royalties or payments which the Seller would otherwise be required to be performed pay had the transactions contemplated by such party under such assigned Contracts, and will this Agreement not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaseroccurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) 2.16 of the Seller Disclosure Schedule, no Seller has continuing obligations under, Schedule (specifying the appropriate paragraph):
(a) neither the Company nor any of its Subsidiaries is a party to or to, nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance payemployment, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor, or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, contract contract, or commitment with a firm or other organization,;
(vii) is an any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having annual lease payments individually a value in excess of $10,000,10,000 individually or $50,000 in the aggregate;
(viiiv) is an any agreement of indemnification, warranty indemnification or guaranty other than in the ordinary course of business,guaranty;
(ixvi) contains any covenant limiting the freedom of any Seller agreement, contract or the Compass Business to engage in any line of business or to compete with any person,
(x) relates commitment relating to capital expenditures and involves involving future payments in excess of $10,000,50,000 individually or $100,000 in the aggregate;
(xivii) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company’s business,;
(xiiviii) is a mortgageany mortgages, indentureindentures, loan guarantees, loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,;
(xiiiix) is a any purchase order or contract for the purchase of materials involving in excess of $10,000 individually or $50,000 in the aggregate;
(x) any construction contracts;
(xi) any dealer, distribution, joint marketing marketing, strategic alliance, affiliate or development agreement (including without limitation any statement of work, special project request, purchase order, annex or amendment to any such agreement,);
(xivxii) is an any agreement, contract or commitment with to alter the Company’s interest in any customer Subsidiary, corporation, association, joint venture, partnership or vendor whichbusiness entity in which the Company directly or indirectly holds any interest;
(xiii) any sales representative, during the last two fiscal yearsoriginal equipment manufacturer, accountedmanufacturing, value added, remarketer, reseller, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicableindependent software vendor, or Table other agreement for use or distribution of Contentsthe products, technology or services of the Company or any of its Subsidiaries; or
(xvxiv) is an any other agreement, contract or commitment that involves $10,000 individually or $50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) As Each Contract to which the Company or any of the Closing Date, its Subsidiaries is a party or any of their respective properties or assets (xwhether tangible or intangible) each Contract (other than any Contract constituting an Excluded Asset) will be is subject is a valid and binding obligation agreement of the Company or its Subsidiaries, as the case may be, enforceable against each of the parties thereto and in full force and effectaccordance with its terms, and (assuming receipt of any required consent set forth in Section 3.2(c) of the Seller Disclosure Schedule) will continue is in full force and effect following with respect to the transactions contemplated by this AgreementCompany or the applicable Subsidiary and, to the Knowledge of the Company and the Principal Stockholders, any other party thereto. The Company and each of its Subsidiaries are in each case without compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any breach of any the terms or conditions thereof of any such Contract, nor to the Knowledge of the Company or the forfeiture Principal Stockholders is any party obligated to the Company or impairment any of its Subsidiaries pursuant to any such Contract subject to any breach, violation or default thereunder, nor does the Company or any Principal Stockholder have Knowledge of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will not be (event that with or without the lapse of time or the time, giving of noticenotice or both would constitute such a breach, or both) in breach violation or default thereunder and (z) each by the Company, its Subsidiaries or any such other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunderparty. True and complete copies of each Contract, if written, Contract disclosed in the Disclosure Schedule or required to be listed in disclosed pursuant to this Section 1.2(a)(ii2.16 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Parent.
(c) The Company and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the date hereof, and to the Knowledge of the Seller Disclosure Schedule have been provided Company, without giving effect to Purchaserthe Merger, the Company will fulfill, when due, all of its obligations under the Material Contracts that remain to be performed after the date hereof.
(d) All outstanding indebtedness of the Company or its Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth Spacecraft has previously advised Gateway in Section 3.13(a) of the Seller Disclosure Schedulewriting, no Seller has continuing obligations under, Spacecraft is not a party to or nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an 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,;
(vii) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having with fixed annual lease rental payments individually in excess of $10,000,;
(viiiv) is an agreement of indemnificationany agreement, warranty contract, commitment or guaranty other than in the ordinary course of business,
(ix) contains grant containing any covenant limiting the freedom of any Seller or the Compass Business Spacecraft to engage in any line of business or to compete with any person,;
(xvi) relates any agreement, contract or commitment relating to capital expenditures and involves involving future payments in excess of $10,000,10,000 either individually or in the aggregate;
(xivii) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of Spacecraft's business,;
(xiiviii) is a any mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money, the extension of credit or placing of liens on any assets of Spacecraft;
(ix) any guaranty of any obligation for borrowed money or extension of credit,otherwise;
(xiiix) is a any purchase order or contract for the purchase of materials involving in excess of $10,000 either individually or in the aggregate;
(xi) any dealer, distribution, joint marketing or development agreement,;
(xii) any sales representative, original equipment manufacturer, value added, remarketing or other agreement for distribution of Spacecraft's products or services;
(xiii) any collective bargaining agreement or contract with any labor union;
(xiv) is an agreementany bonus, contract pension, profit sharing, retirement or commitment with any customer or vendor which, during the last two fiscal years, accounted, or is expected to account during fiscal year 2002, for more than 10% other form of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contentsdeferred compensation plan;
(xv) is an any medical insurance or similar plan; or
(xvi) any other agreement, contract contract, commitment or commitment that involves grant pursuant to which the obligations of any party thereto is in excess of $10,000 or more or is not cancelable without penalty within thirty (30) days10,000.
(b) As Spacecraft is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt terms or conditions of any required consent set forth in Section 3.2(c) agreement, contract, grant, covenant, instrument, lease, license or commitment to which Spacecraft is a party or by which its assets are bound (collectively, a "Contract"), nor is either Shareholder aware of any event that would constitute such a breach, violation or default with the Seller Disclosure Schedule) will continue lapse of time, giving of notice or both. Each Contract is in full force and effect following and is not subject to any default thereunder by any party obligated to Spacecraft pursuant thereto. Spacecraft has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder for such Contracts to remain in effect without modification or termination after the Closing. Following the Closing Date, Spacecraft will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which Spacecraft would otherwise be required to pay had the transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will Agreement not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaseroccurred.
Appears in 1 contract
Sources: Share Exchange Agreement (Gateway International Holdings Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) SECTION 2.14 of the Seller Disclosure Schedule, no Seller has continuing obligations under, the Company is not a party to or to, nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(ia) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, or consulting or sales agreement, contract contract, or commitment with a firm or other organization,;
(vb) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(vic) is a any fidelity or surety bond or completion bond,;
(viid) is a any lease of personal property having annual lease payments individually a value in excess of $10,000,25,000 individually or $75,000 in the aggregate;
(viiie) is an any agreement of indemnification, warranty indemnification or guaranty other than in the ordinary course of business,guaranty;
(ixf) contains any covenant limiting the freedom of any Seller agreement, contract or the Compass Business to engage in any line of business or to compete with any person,
(x) relates commitment relating to capital expenditures and involves involving future payments in excess of $10,000,25,000 individually or $75,000 in the aggregate;
(xig) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company's business,;
(xiih) is a mortgageany mortgages, indentureindentures, loan guarantees, loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,;
(xiiii) is a any purchase order or contract for the purchase of materials involving in excess of $25,000 individually or $75,000 in the aggregate;
(j) any construction contracts;
(k) any dealer, distribution, joint marketing or development agreement,;
(xivl) is an agreementany sales representative, contract or commitment with any customer or vendor whichoriginal equipment manufacturer, during the last two fiscal yearsmanufacturing, accountedvalue added, remarketer, reseller, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicableindependent software vendor, or Table other agreement for use or distribution of Contentsthe products, technology or services of the Company; or
(xvm) is an any other agreement, contract or commitment that involves $10,000 25,000 individually or $75,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) days.
(b) As of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt of any required consent set forth in Section 3.2(c) of the Seller Disclosure Schedule) will continue in full force and effect following the transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaser.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Brocade Communications Systems Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) of on SCHEDULE 2.12(a), the Seller Disclosure Schedule, no Seller has continuing obligations underCompany does not have, is not a party to or nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a any collective bargaining agreement,agreements;
(ii) contains any agreements or arrangements that contain any severance pay, pay or post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),obligations;
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) is an any employment or consulting agreement, agreement or contract or commitment with an employee or individual consultant or salesperson or consulting agreement or sales agreementcontract, contract or commitment with under which a firm or other organization,organization provides services to the Company pursuant to which the Company is obligated to make payments in excess of $30,000 per year;
(v) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(vi) is a any fidelity or surety bond or completion bond,;
(vii) is a any lease of personal property having annual lease payments a value individually in excess of $10,000,30,000;
(viii) is an any agreement of indemnification, warranty indemnification or guaranty other than in the ordinary course of business,guaranty;
(ix) contains any agreement, contract or commitment containing any covenant limiting the freedom of any Seller or the Compass Business Company to engage in any line of business or to compete with any person,;
(x) relates any agreement, contract or commitment relating to capital expenditures and involves involving future payments in excess of $10,000,25,000 individually or $40,000 in the aggregate;
(xi) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company's business,;
(xii) is a mortgageany mortgages, indentureindentures, loan loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,, including guaranties referred to in clause (viii) hereof;
(xiii) is a any purchase order or contract for the purchase of raw materials involving $35,000 or more;
(xiv) any construction contract;
(xv) any material distribution, joint marketing or development agreement,;
(xivxvi) is an any agreement, contract or commitment with pursuant to which the Company has granted or may grant in the future, to any customer party a source-code license or vendor which, during the last two fiscal years, accounted, option or is expected other right to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue use or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contentsacquire source-code; or
(xvxvii) is an any other agreement, contract or commitment that involves $10,000 35,000 or more or is not cancelable without penalty within thirty (30) days.
(b. SCHEDULE 2.12(a) As sets forth a list of the Closing DateCompany's top 15 customers according to revenue for the fiscal year ended December 31, (x) 1998, and each Contract (other than any Contract constituting customer with which the Company currently has an Excluded Asset) will agreement that the Company in good faith expects to be a valid and binding obligation one of the parties thereto and in full force and effectCompany's top 15 customers for the fiscal year ending December 31, 1999, and (assuming receipt a list of any required consent set forth in Section 3.2(c) of all effective agreements between such customer and the Seller Disclosure Schedule) will continue in full force Company. Except for such alleged breaches, violations and effect following the transactions contemplated by this Agreementdefaults, in each case without any breach of any terms and events that would constitute a breach, violation or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will not be (default with or without the lapse of time or the time, giving of notice, or both) , all of which are noted in breach SCHEDULE 2.12(b), the Company has not breached, violated or default thereunder and (z) each other party to each Contract (other than defaulted under, or received notice that it has breached, violated or defaulted under, any Contract constituting an Excluded Asset) will have performed all obligations of the terms or conditions of any agreement, contract or commitment required to be performed set forth on SCHEDULE 2.12(a) or SCHEDULE 2.11(b) (any such agreement, contract or commitment, a "CONTRACT"). Each Contract is in full force and effect and, except as otherwise disclosed in SCHEDULE 2.12(b), is not subject to any material default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. SCHEDULE 2.12(c) lists all contracts, licenses and agreements between the Company and any other person wherein the Company has agreed to, or assumed, any material obligation or material duty to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any material obligation or liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or such party under other person of the intellectual property of any person or entity other than the Company. To the extent that the products currently offered by the Company record, store, process, calculate or present calendar dates falling on and after (and if applicable, spans of time including) January 1, 2000, they do so accurately and calculate any information dependent on or relating to such assigned Contractsdates in the same manner, and will not be (with the same functionality, data integrity and performance, as the products record, store, process, calculate and present calendar dates on or without the lapse of time or the giving of noticebefore December 31, 1999, or both) in breach calculate any information dependent on or default thereunderrelating to such dates (collectively, "YEAR 2000 COMPLIANT"). True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) All of the Seller Disclosure Schedule have been provided products currently offered by the Company (i) will lose no functionality with respect to Purchaserthe introduction of records containing dates falling on or after January 1, 2000. All of the Company's internal computer and technology products and systems are Year 2000 Compliant.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth Nu-Tech has previously advised Gateway in Section 3.13(a) of the Seller Disclosure Schedulewriting, no Seller has continuing obligations under, Nu-Tech is not a party to or nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an 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,;
(vii) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having with fixed annual lease rental payments individually in excess of $10,000,;
(viiiv) is an agreement of indemnificationany agreement, warranty contract, commitment or guaranty other than in the ordinary course of business,
(ix) contains grant containing any covenant limiting the freedom of any Seller or the Compass Business Nu-Tech to engage in any line of business or to compete with any person,;
(xvi) relates any agreement, contract or commitment relating to capital expenditures and involves involving future payments in excess of $10,000,10,000 either individually or in the aggregate;
(xivii) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of Nu-Tech's business,;
(xiiviii) is a any mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money, the extension of credit or placing of liens on any assets of Nu-Tech;
(ix) any guaranty of any obligation for borrowed money or extension of credit,otherwise;
(xiiix) is a any purchase order or contract for the purchase of materials involving in excess of $10,000 either individually or in the aggregate;
(xi) any dealer, distribution, joint marketing or development agreement,;
(xii) any sales representative, original equipment manufacturer, value added, remarketing or other agreement for distribution of Nu-Tech's products or services;
(xiii) any collective bargaining agreement or contract with any labor union;
(xiv) is an agreementany bonus, contract pension, profit sharing, retirement or commitment with any customer or vendor which, during the last two fiscal years, accounted, or is expected to account during fiscal year 2002, for more than 10% other form of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contentsdeferred compensation plan;
(xv) is an any medical insurance or similar plan; or
(xvi) any other agreement, contract contract, commitment or commitment that involves grant pursuant to which the obligations of any party thereto is in excess of $10,000 or more or is not cancelable without penalty within thirty (30) days10,000.
(b) As Nu-Tech is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt terms or conditions of any required consent set forth in Section 3.2(c) agreement, contract, grant, covenant, instrument, lease, license or commitment to which Nu-Tech is a party or by which its assets are bound (collectively, a "Contract"), nor is either Shareholder aware of any event that would constitute such a breach, violation or default with the Seller Disclosure Schedule) will continue lapse of time, giving of notice or both. Each Contract is in full force and effect following and is not subject to any default thereunder by any party obligated to Nu-Tech pursuant thereto. Nu-Tech has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder for such Contracts to remain in effect without modification or termination after the Closing. Following the Closing Date, Nu-Tech will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which Nu-Tech would otherwise be required to pay had the transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will Agreement not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaseroccurred.
Appears in 1 contract
Sources: Share Exchange Agreement (Gateway International Holdings Inc)
Agreements, Contracts and Commitments. (a) Except as set forth ESK has previously advised Gateway, in Section 3.13(a) of the Seller Disclosure Schedulewriting, no Seller has continuing obligations under, ESK is not a party to or nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an 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,;
(vii) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having with fixed annual lease rental payments individually in excess of $10,000,;
(viiiv) is an agreement of indemnificationany agreement, warranty contract, commitment or guaranty other than in the ordinary course of business,
(ix) contains grant containing any covenant limiting the freedom of any Seller or the Compass Business ESK to engage in any line of business or to compete with any person,;
(xvi) relates any agreement, contract or commitment relating to capital expenditures and involves involving future payments in excess of $10,000,10,000 either individually or in the aggregate;
(xivii) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of ESK's business,;
(xiiviii) is a any mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money, the extension of credit or placing of liens on any assets of ESK;
(ix) any guaranty of any obligation for borrowed money or extension of credit,otherwise;
(xiiix) is a any purchase order or contract for the purchase of materials involving in excess of $10,000 either individually or in the aggregate;
(xi) any dealer, distribution, joint marketing or development agreement,;
(xii) any sales representative, original equipment manufacturer, value added, remarketing or other agreement for distribution of ESK's products or services;
(xiii) any collective bargaining agreement or contract with any labor union;
(xiv) is an agreementany bonus, contract pension, profit sharing, retirement or commitment with any customer or vendor which, during the last two fiscal years, accounted, or is expected to account during fiscal year 2002, for more than 10% other form of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contentsdeferred compensation plan;
(xv) is an any medical insurance or similar plan; or
(xvi) any other agreement, contract contract, commitment or commitment that involves grant pursuant to which the obligations of any party thereto is in excess of $10,000 or more or is not cancelable without penalty within thirty (30) days10,000.
(b) As ESK is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt terms or conditions of any required consent set forth in Section 3.2(c) agreement, contract, grant, covenant, instrument, lease, license or commitment to which ESK is a party or by which its assets are bound (collectively, a "Contract"), nor is either Shareholder aware of any event that would constitute such a breach, violation or default with the Seller Disclosure Schedule) will continue lapse of time, giving of notice or both. Each Contract is in full force and effect following and is not subject to any default thereunder by any party obligated to ESK pursuant thereto. ESK has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder for such Contracts to remain in effect without modification or termination after the Closing. Following the Closing Date, ESK will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which ESK would otherwise be required to pay had the transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will Agreement not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to Purchaseroccurred.
Appears in 1 contract
Sources: Share Exchange Agreement (Gateway International Holdings Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) 2.16 of the Seller Disclosure Schedule, no Seller has continuing obligations under, Schedule (specifying the appropriate paragraph):
(a) The Company is not a party to or to, nor is it bound by any Contract related in any way to the Acquired Business Assets that: Table of Contentsby:
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an employment or consulting agreement, contract or commitment with an employee or individual consultant to grant any severance or salesperson termination pay (in cash or consulting or sales agreement, contract or commitment with a firm or other organization,otherwise);
(vii) is an any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,;
(viiii) is a any fidelity or surety bond or completion bond,;
(viiiv) is a any lease of personal property having annual lease payments individually a value in excess of $10,000,25,000 individually or $50,000 in the aggregate;
(viiiv) is an any agreement of indemnification, warranty indemnification or guaranty other than in outside of the ordinary course of business,;
(ixvi) contains any covenant limiting the freedom of any Seller agreement, contract or the Compass Business to engage in any line of business or to compete with any person,
(x) relates commitment relating to capital expenditures and involves involving future payments in excess of $10,000,25,000 individually or $50,000 in the aggregate;
(xivii) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company’s business,;
(xiiviii) is a mortgageany mortgages, indentureindentures, loan guarantees, loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,;
(xiiiix) is a any purchase order or contract for the purchase of materials involving in excess of $25,000 individually or $50,000 in the aggregate;
(x) any construction contracts;
(xi) any dealer, distribution, joint marketing marketing, strategic alliance, affiliate or development agreement,;
(xivxii) is an any agreement, contract or commitment with to alter the Company’s interest in any customer corporation, association, joint venture, partnership or vendor whichbusiness entity in which the Company directly or indirectly holds any interest;
(xiii) any agreement, during contract or commitment pursuant to which the last two fiscal years, accountedCompany has undertaken to, or pursuant to which the receipt of revenue is expected to account during fiscal year 2002contingent upon, for more than 10% the delivery of Sellers’ consolidated net revenue products or 10% service offerings not in commercial existence as of Sellers’ consolidated trade payablesthe date hereof, as applicableand including those which are contingent upon the release of any new product or new version of an existing product;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or Table independent software vendor, or other agreement for use or distribution of Contentsthe products, technology or services of the Company other than Standard License Agreements; or
(xv) is an any other agreement, contract or commitment that involves $10,000 25,000 individually or $50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) As Each Contract to which the Company is a party or any of the Closing Date, its properties or assets (xwhether tangible or intangible) each Contract (other than any Contract constituting an Excluded Asset) will be is subject is a valid and binding obligation agreement of the Company enforceable against each of the parties thereto and in full force and effectaccordance with its terms, and (assuming receipt of any required consent set forth in Section 3.2(c) of the Seller Disclosure Schedule) will continue is in full force and effect following with respect to the transactions contemplated by this AgreementCompany and, to the Knowledge of the Company, any other party thereto. The Company is in each case without 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 breach of any the terms or conditions thereof or the forfeiture or impairment of any rights such Contract, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any such Contract subject to any material breach, violation or default thereunder, (y) each Seller will nor does the Company have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than Knowledge of any Contract constituting an Excluded Asset) to which it is a party and will not be (event that with or without the lapse of time or the time, giving of noticenotice or both would constitute such a material breach, or both) in breach violation or default thereunder and (z) each by the Company or any such other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunderparty. True and complete copies of each Contract, if written, Contract disclosed in the Disclosure Schedule or required to be listed in disclosed pursuant to this Section 1.2(a)(ii2.16 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Parent.
(c) The Company has fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the date hereof, and, without giving effect to the Merger, the Company will fulfill, when due, all of its obligations under the Material Contracts that remain to be performed after the date hereof.
(d) All outstanding indebtedness of the Seller Disclosure Schedule have been provided to PurchaserCompany may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.13(a) of the Seller Disclosure Schedule, no Seller has continuing obligations under, The Company is not a party to or nor is either bound by any Contract related in any way to the Acquired Business Assets thatby: Table of Contents
(i) is a collective bargaining agreement,
(ii) contains any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) is an 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 consulting agreements in the ordinary course of business containing appropriate confidentiality, proprietary information and invention assignment provisions, (vii) is an any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,
(viiii) is a any fidelity or surety bond or completion bond,
, (viiiv) is a any lease of personal property having annual lease payments a book value individually in excess of $10,000,
(viii) is an agreement of indemnification, warranty 50,000 or guaranty other than $100,000 in the ordinary course of business,
aggregate, (ixv) contains any covenant limiting the freedom of any Seller agreement, contract or the Compass Business to engage in any line of business or to compete with any person,
(x) relates commitment relating to capital expenditures and involves involving future payments by the Company in excess of $10,000,
50,000 individually or $100,000 in the aggregate, (xivi) relates any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in the Compass Business any business enterprise outside the ordinary course of the Company's business,
, (xiivii) is a mortgageany mortgages, indentureindentures, loan loans or credit agreementagreements, security agreement agreements or other agreement agreements or instrument instruments relating to the borrowing of money or extension of credit,
, (xiiiviii) is a any purchase order or contract for the purchase of materials involving in excess of $50,000 individually or $100,000 in the aggregate to be incurred by the Company following the date of this Agreement, (ix) any construction contracts, (x) any distribution, joint marketing or development agreement,
, (xivxi) is an agreement, contract or commitment with any customer or vendor which, during the last two fiscal years, accounted, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contents
(xv) is an other agreement, contract or commitment that involves $10,000 100,000 or more or is not cancelable terminable upon notice of 90 or fewer days by the Company without penalty within thirty or payment of any kind, or (30xii) daysany agreement to be responsible for or to indemnify any other person against any claim, liability, cost or expense concerning any environmental matter, contamination of any property or any other claim arising from the condition of any real property or the improvements thereon.
(b) As The Company is in compliance with and has not materially breached, violated or defaulted under, or received notice it has breached, violated or defaulted under any of the Closing Date, (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and binding obligation of the parties thereto and in full force and effect, and (assuming receipt terms or conditions of any required consent set forth in Section 3.2(c) Contract. The Company is not aware of any event that would constitute a material breach, violation or default with the Seller Disclosure Schedule) will continue lapse of time, giving of notice or 21 27 both of a material Contract. Each Contract is in full force and effect following the transactions contemplated and is not subject to any default thereunder by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior party obligated to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a party and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 1.2(a)(ii) of the Seller Disclosure Schedule have been provided to PurchaserCompany pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)