Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation nor any Subsidiary of Target Corporation is a party to or is bound by (i) any written or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitment.
Appears in 2 contracts
Sources: Merger Agreement (D & K Healthcare Resources Inc), Merger Agreement (D & K Healthcare Resources Inc)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17As of the date hereof, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future director or higher level employee or member of Parent's Board of Directors, other than those that are terminable by Parent or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Parent, (ii) any such agreement, contract or commitment with any employee, consultant, stockholder or other person that will result in any obligation of Parent or any of its subsidiaries to make any payments (whether in payment of a debt, as a result of a guarantee the transactions contemplated hereby, (iii) any agreement with any employee, consultant or indemnificationstockholder of Parent pursuant to which Parent has loaned or is obligated to loan any money thereto or (iv) any arrangement or agreement providing for severance or termination pay;
(b) any agreement or plan, for goods including, without limitation, any stock option plan, stock appreciation right plan or services stock purchase plan, any of the benefits of which will be increased, or otherwisethe 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;
(c) by any agreement of indemnification of officers, directors or employees of Parent or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Parent;
(d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Parent or any of its subsidiaries to engage in any line of business in any geographic area or to Target Corporation of $100,000 compete with any person or more and which is notgranting to any person any interest in Parent's distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by its terms, terminable by Target Corporation Parent or one or more any of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for subsidiaries after the purchase or sale date of goods and/or services entered into by Target Corporation this Agreement of a material amount of assets not in the ordinary course of businessbusiness or pursuant to which Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Parent's subsidiaries;
(f) any contract containing exclusivity provisions pursuant to which Parent has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person;
(g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit;
(i) any real property lease covering more than 20,000 square feet;
(j) any agreement, contract or commitment obligating Parent to make any payments based on (i) the number of users accessing any website operated by Parent or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any employment such website; or
(k) any other agreement, non-competition contract or commitment that involves remaining obligations of Parent of $5,000,000 or more individually. Neither Parent nor any of its subsidiaries, nor to Parent's knowledge any other party to a Parent Contract (as defined below), is in breach, violation or default under, and neither Parent nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Parent or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Parent Schedules (any such agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Parent Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Parent Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Homegrocer Com Inc), Agreement and Plan of Reorganization (Homegrocer Com Inc)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17As of the date of ------------------------------------- this Agreement, neither Target Corporation nor any Subsidiary of Target Corporation its Subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment member of a debtTarget's Board of Directors, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, other than those that are terminable by Target Corporation or one or more any of its Subsidiaries without penalty or payment on no more than 30 days notice without liability or lessfinancial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will;
(b) any agreement of indemnification or any guaranty other than purchase orders for the purchase or sale any agreement of goods and/or services indemnification entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business, business where such agreement or guarantee might reasonably result in a Target Material Adverse Effect;
(iic) any employment agreement, non-competition contract or commitment containing any covenant limiting in any material respect the right of Target or any of its Subsidiaries to engage in any line of business or to compete with any person; or
(d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business), business or pursuant to which Target has any sales representative, allianceownership interest in any corporation, partnership, joint venture, joint operating venture or similar agreementother business enterprise other than Target's Subsidiaries. The Neither Target Corporation has delivered to Acquiring Corporation a correct and complete copy nor any of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, nor to Target's knowledge any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the case may be; (B) material terms or conditions of any of the agreements, contracts or commitments to the Knowledge which Target or any of Target Corporation, the agreement will continue its Subsidiaries is a party or by which it is bound that are required to be Enforceable against filed as an exhibit to a Target SEC Report or to be disclosed in the other parties thereto following the consummation of the transactions contemplated hereby; Target Disclosure Schedule (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, modification, damages or acceleration, under the agreement; and (E) other remedies would be reasonably likely to the Knowledge of have a Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Borland International Inc /De/), Merger Agreement (Borland International Inc /De/)
Agreements, Contracts and Commitments. Except as described otherwise set forth ------------------------------------- in Schedule 2.17Part 2.17 of the Company Disclosure Schedule, as of the date hereof neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result the Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than purchase orders for those that are terminable by the purchase Company or sale any of goods and/or services its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit the Company's or any of its subsidiaries' ability to terminate employees at will;
(b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software or hardware products in the ordinary course of business, or ;
(iic) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which the Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than the Company's subsidiaries;
(e) any joint marketing or development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, joint operating technology or similar service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which the Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; or
(f) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a whole. The Target Corporation has delivered Neither the Company nor any of its subsidiaries, nor to Acquiring Corporation the Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither the Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Disclosure Schedule 2.17. With respect pursuant to each clauses (a) through (f) above or pursuant to Section 2.9 hereof or are required to be filed with any Company SEC Report (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 2 contracts
Sources: Merger Agreement (Palm Inc), Merger Agreement (Extended Systems Inc)
Agreements, Contracts and Commitments. (a) Except as described in Schedule 2.17would not be material to the HDD Business, neither Target Corporation Parent nor any Subsidiary of Target Corporation its Subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debtthe Board of Directors of Parent, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, other than those that are terminable by Target Corporation Parent or one or more any of its Subsidiaries on no more than thirty (30) days' notice without penalty Liability or payment financial obligation to Parent;
(ii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, restricted stock 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 30 days notice the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indemnification or less, any guaranty other than purchase orders for the purchase or sale any agreement of goods and/or services indemnification entered into by Target Corporation in connection with the sale or license of products or services in the ordinary course of business, or ;
(iiiv) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Parent or any of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Parent or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Parent has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than its Subsidiaries; or
(vi) any mortgages, joint operating indentures, guarantees, loans or similar agreement. The Target Corporation has delivered credit agreements, security agreements or other agreements or instruments relating to Acquiring Corporation a correct and complete copy the borrowing of each written agreement listed in Schedule 2.17 money or extension of credit.
(as amended to dateb) and a written summary setting forth the terms and conditions Neither Parent nor any of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) nor to the Knowledge knowledge of Target CorporationParent any other party to a Parent Contract (as defined below), is in breach, violation or default under, and neither Parent nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the agreement will continue material terms or conditions of any of the agreements, contracts or commitments to which Parent or any of its Subsidiaries is a party or by which Parent or any of its Subsidiaries is bound that are required to be Enforceable against disclosed in the other parties thereto following the consummation of the transactions contemplated hereby; Parent Schedules pursuant to this Agreement (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contractagreements, agreement contracts or commitment described commitments are "Parent Contracts") in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach manner as would permit any other party to cancel or default by Target Corporation or its Subsidiariesterminate any such Parent Contract, or would permit terminationany other party to seek material damages or other material remedies (for any of such breaches, modificationviolations or defaults, or acceleration, under any such contract, agreement or commitment; (D) to all of them in the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 2 contracts
Sources: Merger Agreement (Quantum Corp /De/), Merger Agreement (Maxtor Corp)
Agreements, Contracts and Commitments. Except as described otherwise set forth ------------------------------------- in Schedule 2.17Part 3.16 of the Parent Disclosure Letter, neither Target Corporation Parent nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written or oral contractemployment agreement, agreement contract or commitment which involves with any employee or may involve aggregate future payments (whether in payment member of a debt, as a result Parent's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Parent or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Parent's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders 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;
(c) any agreement of indemnification, any guaranty or any instrument evidencing indebtedness for the purchase or borrowed money by way of direct loan, sale of goods and/or services entered into debt securities, purchase money obligation, conditional sale, or otherwise;
(d) any agreement, obligation or commitment containing covenants purporting to limit or which effectively limit Parent's or any of its subsidiaries' freedom to compete in any line of business or in any geographic area or which would so limit Parent or Surviving Corporation or any of its subsidiaries or any of their respective employees after the Effective Time or granting any exclusive distribution or other exclusive rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Corporation Parent or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business, business or (ii) pursuant to which Parent has any employment agreement, non-competition agreement, material ownership interest in any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliancecorporation, partnership, joint ventureventure or other business enterprise other than Parent's subsidiaries;
(f) any licensing, joint operating distribution, sponsorship, advertising, merchant program or other similar agreement. The Target Corporation has delivered agreement to Acquiring Corporation which Parent or one of its subsidiaries is a correct and complete copy of each written agreement listed in Schedule 2.17 party which (as amended to datei) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation may not be canceled by Parent or its Subsidiariessubsidiaries, as the case may be; , without penalty upon notice of 30 days or less, and (Bii) which provides for payments by or to Parent or its subsidiaries in an amount in excess of $100,000 over the Knowledge term of Target Corporation, the agreement will continue or which is (or could reasonably be expected to become) material to Parent;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology; or
(h) any other agreement, contract or commitment currently in effect that is material to Parent's business as presently conducted and proposed to be Enforceable against the conducted. Neither Parent nor any of its subsidiaries, nor to Parent's knowledge any other parties thereto following the consummation party to a Parent Contract (as defined below), is in breach, violation or default under, and neither Parent nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the transactions contemplated hereby; material terms or conditions of any of the agreements, contracts or commitments to which Parent or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Parent Disclosure Letter pursuant to clauses (Ca) neither Target Corporation nor through (h) above or pursuant to Section 3.11 hereof or are required to be filed with any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, Parent SEC Report (any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Parent Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Parent Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (Eaggregate). The agreements listed on Part 3.16(i) of the Parent Disclosure Letter have, to Parent's knowledge, been executed by each party thereto in the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentform provided to Company.
Appears in 2 contracts
Sources: Merger Agreement (Egghead Com Inc), Merger Agreement (Onsale Inc)
Agreements, Contracts and Commitments. (a) Except as described in set forth on Schedule 2.174.11, neither Target Corporation nor any Subsidiary of Target Corporation no Seller is a party to or and no Seller is bound by any of the following in connection with the Business:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with an employee or may involve aggregate future payments (whether in payment of individual consultant or salesperson or consulting or sales agreement, contract or commitment with a debt, as a result of a guarantee firm or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or organization;
(ii) any employment fidelity or surety bond or completion bond;
(iii) any agreement of indemnification or guaranty;
(iv) any purchase order or contract for the purchase of materials involving $2,000, individually, or $20,000 in the aggregate;
(v) any distribution, joint marketing or development agreement; or
(vi) any other agreement, contract or commitment that involves $5,000 or more or is not cancelable without penalty within thirty (30) days.
(a) No Seller has breached, violated or defaulted under, or received written notice that such Seller has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which such Seller is a party or by which such Seller is bound with respect to the Business or the Acquired Assets. Each such agreement, contract or commitment is in full force and effect. Each Seller is in compliance with, and no Seller has breached any contract, license or agreement to which such Seller is a party or by which such Seller is bound with respect to the Business or the Acquired Assets or by which the assets of the Business are bound, and, to the knowledge of each Seller, all other parties to all such contracts, licenses and agreements are in compliance with, and have not breached any of such contracts, licenses or agreements. Following the Closing, Buyer will be permitted to exercise all of each Seller's rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which, such Seller would otherwise be required to pay.
(a) The contracts, licenses and agreements listed on Schedule 4.11(b) are all contracts, licenses and agreements, to which each Seller is a party which still require performance of services or other obligations, including without limitation, indemnification, non-competition agreementcompete and non-disclosure obligations, any loan delivery of materials or credit agreementongoing royalties or similar payments, security agreementeither by a Seller or to the benefit of a Seller, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or "shrink wrap" and similar agreementcommercial end-user licenses. The Target Corporation has delivered contracts, licenses and agreements listed on Schedule 4.11(b) are in full force and effect. Provided that any necessary consents to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiariesassignment have been obtained, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) by this Agreement will neither Target Corporation violate nor any Subsidiary of Target Corporation is result in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit terminationbreach, modification, or accelerationcancellation, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitmenttermination, or permit terminationsuspension of the contracts, modification, or acceleration, under the agreement; licenses and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentagreements listed on Schedule 4.11(c).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Critical Home Care Inc), Asset Purchase Agreement (Critical Home Care Inc)
Agreements, Contracts and Commitments. Except as described otherwise set forth in Schedule 2.17the Launch Disclosure Schedules, neither Target Corporation Launch nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written or oral contractemployment agreement, agreement contract or commitment which involves with any employee or may involve aggregate future payments (whether in payment member of a debt, as a result Launch's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Launch or any of its subsidiaries on no more than 30 days' notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Launch's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services entered into benefits of which will be accelerated, by Target Corporation 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;
(c) any agreement of indemnification outside the ordinary course of Launch's business or any guaranty;
(d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Launch or any of its subsidiaries or a Joint Venture to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Launch or any of its subsidiaries or a Joint Venture after the date of this Agreement of a material amount of assets not in the ordinary course of business, business or (ii) pursuant to which Launch has any employment agreement, non-competition agreement, material ownership interest in any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliancecorporation, partnership, joint ventureventure or other business enterprise other than Launch's subsidiaries or a Joint Venture;
(f) any licensing, joint operating distribution, sponsorship, advertising, merchant program, encoding services, hosting or other similar agreement. The Target Corporation has delivered agreement to Acquiring Corporation which Launch or one of its subsidiaries or a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and Joint Venture is a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation party which may not be canceled by Launch or its Subsidiariessubsidiaries or a Joint Venture, as the case may be, without penalty in excess of $10,000 upon notice of 30 days or less or which provides for payments by Launch or its subsidiaries or a Joint Venture in an amount in excess of $10,000 over the term of the agreement or to Launch or its subsidiaries or a Joint Venture in an amount in excess of $100,000 over the term of the agreement;
(g) any agreement, contract or commitment currently in force to license or provide source code to any third party for any product or technology; or
(Bh) any other agreement, contract or commitment currently in effect that is material to Launch's business as presently conducted. Neither Launch nor any of its subsidiaries, nor to Launch's knowledge any Joint Venture or any other party to a Launch Contract (as defined below), is in breach, violation or default under, and neither Launch nor any of its subsidiaries nor, to the Knowledge knowledge of Target CorporationLaunch, any Joint Venture has received written notice (or to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the agreement will continue material terms or conditions of any of the agreements, contracts or commitments to which Launch or any of its subsidiaries or a Joint Venture is a party or by which it is bound that are required to be Enforceable against disclosed in the other parties thereto following the consummation of the transactions contemplated hereby; Launch Disclosure Schedules pursuant to clauses (Ca) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of through (h) above or is not in default in any material respect under the terms of, pursuant to Section 3.9 hereof (any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "LAUNCH CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of terminate any such contract, agreement Launch Contract or commitmentseek damages or other remedies the effect of which would have a Material Adverse Effect on Launch.
Appears in 2 contracts
Sources: Merger Agreement (Launch Media Inc), Merger Agreement (Launch Media Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section 2.18 of the Company Disclosure Letter, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, contract or commitment with any officer, director, Company employee or member of Company's Board of Directors, or any service, operating or management agreement or commitment which involves or may involve aggregate future payments arrangement with respect to any of its properties (whether leased or owned) other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in payment connection with the sale or license of a debt, as a result of a guarantee or indemnification, for goods products or services in or otherwise) by or to Target Corporation the licensing of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation real property in the ordinary course of business;
(d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;
(f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any Intellectual Property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (ii90) days or less;
(g) any employment agreement, non-competition contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any loan Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(h) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(i) any mortgages, indentures, guarantees, loans or credit agreementagreements, security agreement, indenture, mortgage, pledge agreements or other instrument evidencing indebtedness (agreements or instruments relating to the borrowing of money or extension of credit other than equipment purchases or lease agreements entered into trade payables incurred in the ordinary course of business;
(j) any material settlement agreement under which the Company has ongoing obligations; or
(k) any other agreement, contract or commitment involving in excess of $100,000 being paid by or to Company over the term thereof. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in material breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any sales representative, alliance, partnership, joint venture, joint operating of its subsidiaries is a party or similar agreement. The Target Corporation has delivered by which it is bound that are required to Acquiring Corporation a correct and complete copy of each written agreement listed be disclosed in Schedule 2.17 the Company Disclosure Letter (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; aggregate). Company has made available to Parent true and (E) to the Knowledge of Target Corporation, no party has repudiated any provision correct copies of any such contract, agreement or commitmentcontracts between Company and its top ten customers.
Appears in 2 contracts
Sources: Merger Agreement (Accord Networks LTD), Merger Agreement (Polycom Inc)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation its material subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Company's or any of its subsidiaries' ability to terminate employees at will;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any material respect the right of Company or any of its material subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any material agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(f) any material joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, joint operating technology or similar service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; or
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology except as a distributor in the normal course of business. The Target Corporation has delivered Neither Company nor any of its material subsidiaries, nor to Acquiring Corporation Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in Schedule 2.17. With respect the Company Schedules pursuant to each clauses (a) through (h) above or pursuant to Section 2.9 hereof (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 2 contracts
Sources: Merger Agreement (Network Associates Inc), Agreement and Plan of Reorganization (Network General Corporation)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Parent nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any executive officer, director or may involve aggregate future payments (whether in payment member of a debt, as a result Parent's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Parent or any of its subsidiaries on no more than thirty days notice and which do so with no express (whether by contract or by policy) liability or financial obligation to Parent;
(ii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(iii) any agreement of indemnification or any guaranty currently in force other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license or distribution or marketing of products or services in the ordinary course of business, or ;
(iiiv) any employment agreement, non-competition contract or commitment containing any covenant limiting in any material respect the right of Parent or any of its subsidiaries to engage in any line of business;
(v) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Parent or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Parent has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Parent's subsidiaries; Neither Parent nor any of its subsidiaries, joint operating or similar agreement. The Target Corporation has delivered nor to Acquiring Corporation Parent's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Parent Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Parent nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Parent or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Parent Disclosure Schedule 2.17. With respect pursuant to each this Section 3.19 (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "PARENT CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Parent Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Sanmina Corp/De), Agreement and Plan of Reorganization (Sci Systems Inc)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation its Subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debtClick2learn’s Board of Directors, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, other than those that are terminable by Target Corporation Click2learn or one or more any of its Subsidiaries on no more than thirty (30) days’ notice without penalty liability or payment financial obligation to Click2learn;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on 30 days notice the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or less, any guaranty other than purchase orders for the purchase or sale any agreement of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements indemnification entered into in the ordinary course of business), that would not reasonably be expected to have a Material Adverse Effect on Click2learn, or any sales representativeguaranty of the obligations of a Subsidiary of Click2learn;
(d) any agreement, alliancecontract or commitment containing any covenant limiting in any respect the right of Click2learn or any of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Click2learn or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Click2learn has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Click2learn’s Subsidiaries;
(f) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which Click2learn or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Click2learn or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Click2learn or any of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement. The Target Corporation has delivered , contract or commitment currently in force to Acquiring Corporation provide source code to any third party for any product or technology that is material to Click2learn and its Subsidiaries taken as a correct whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Click2learn product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Click2learn products, service or technology except agreements with distributors or sales representative in the normal course of business and complete copy substantially in the form previously provided to Docent;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of each written money or extension of credit;
(j) any settlement agreement listed in Schedule 2.17 entered into within three (as amended 3) years prior to date) and a written summary setting forth the terms and conditions date of each oral agreement referred to in Schedule 2.17. With this Agreement with respect to each such which Click2learn has contingent obligations of a material nature; or
(k) any other agreement: , contract or commitment that, either individually or taken together with all other contracts with the same party, (Ai) has in the agreement is Enforceable against Target Corporation past 12 months resulted in payments being made by Click2learn or revenue to Click2learn in excess of $1,000,000 or (ii) will, if fulfilled in accordance with its terms, result in payments being made by Click2learn or revenue to Click2learn in excess of $1,000,000 in the next 12 months. Neither Click2learn nor any of its Subsidiaries, nor to Click2learn’s knowledge any other party to a Click2learn Contract (as defined below), is in breach, violation or default under, and neither Click2learn nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the case may be; (B) material terms or conditions of any of the agreements, contracts or commitments to the Knowledge which Click2learn or any of Target Corporation, the agreement will continue its Subsidiaries is a party or by which it is bound that are required to be Enforceable against disclosed in the other parties thereto following the consummation of the transactions contemplated hereby; Click2learn Schedules (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a “Click2learn Contract”) in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Click2learn Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Docent Inc), Agreement and Plan of Reorganization (Click2learn Inc/De/)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation (a) Neither Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result Company's board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessdirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company;
(ii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services benefits of which will be accelerated, by the occurrence of any of the transactions (either alone or upon the occurrence of any additional or subsequent events) contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions (either alone or upon the occurrence of any additional or subsequent events) contemplated by this Agreement;
(iii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license or purchase of products or services in the ordinary course of business, or ;
(iiiv) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(vi) any dealer, distributor, joint operating marketing or similar agreement. The Target Corporation has delivered development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to Acquiring Corporation a correct jointly market any product, technology or service and complete copy which may not be canceled without penalty upon notice of each written agreement listed in Schedule 2.17 ninety (as amended to date90) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation days or its Subsidiariesless, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under or any material provision agreement pursuant to which Company or any of or is its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of whole or in default under the terms part, by Company or any of any such contract, agreement its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitment.less;
Appears in 2 contracts
Sources: Merger Agreement (Sage Inc/Ca), Merger Agreement (Genesis Microchip Inc)
Agreements, Contracts and Commitments. (a) Except as described in Schedule 2.17set forth on Section 4.19(a) of the Seller Disclosure Letter, neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result the Company’s Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days’ notice without liability or financial obligation to the Company;
(ii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Termination 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 or the Termination Agreement;
(iii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale, license, distribution, reselling or other transfer of software products in the ordinary course of business or in connection with the provision of services in the ordinary course of business;
(iv) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business presently conducted by the Company or any subsidiary, or to compete with any person or granting any exclusive distribution rights;
(iiv) any employment agreement, non-competition agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which the Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than the Company’s subsidiaries;
(vi) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which the Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Seller or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less;
(vii) any agreement. The Target Corporation , contract or commitment currently in force to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Products, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon written notice of ninety (90) days or less;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(x) any material settlement agreement entered into within three (3) years prior to the date of this Agreement; or
(xi) any other material agreement, contract or commitment currently in force that is outside the ordinary course of business or that has delivered a value of $50,000 or more within a twelve (12) month period in any individual case.
(b) Neither the Company nor any of its subsidiaries, nor to Acquiring Corporation Seller’s knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither the Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be set forth in Schedule 2.17. With respect to each the Seller Disclosure Letter (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a “Company Contract”) in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Resonate Blends, Inc.), Stock Purchase Agreement (Resonate Blends, Inc.)
Agreements, Contracts and Commitments. Except As of the date hereof, except as described provided in Company Schedule 2.17, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments (whether in payment of a debt, as a result of a guarantee the transactions contemplated hereby, (iii) any agreement with any employee, consultant or indemnificationshareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay;
(b) any agreement or plan, including, without limitation, any stock option plan, warrant agreement, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification of officers, directors or employees of Company, except as provided for goods in Company's Articles of Incorporation or services Bylaws, or otherwiseany guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company;
(d) by any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to Target Corporation of $100,000 compete with any person or more and which is notgranting to any person any interest in Company's distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by its terms, terminable by Target Corporation Company or one or more any of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for subsidiaries after the purchase or sale date of goods and/or services entered into by Target Corporation this Agreement of a material amount of assets not in the ordinary course of business, business or (ii) pursuant to which Company has any employment agreement, non-competition agreement, material ownership interest in any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliancecorporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(f) any agreement, joint operating contract or similar commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods or services of, or enter into a commercial relationship with, another person;
(g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(h) any settlement agreement relating to any claim or suit;
(i) any real property lease covering more than 5,000 square feet; or
(j) any other agreement, lease, contract or commitment that involves remaining obligations of Company of $10,000 or more individually. The Target Corporation has delivered Neither Company nor any of its subsidiaries, nor to Acquiring Corporation Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in Schedule 2.17. With respect to each the Company Schedules (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 2 contracts
Sources: Merger Agreement (Petrex Corp), Agreement and Plan of Reorganization (Eagle Wireless International Inc)
Agreements, Contracts and Commitments. (a) There are no contracts, agreements or instruments that are material to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole (collectively, the "Company Material Contracts"), that have not been filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement. The Company has made available to the Buyer complete and accurate copies of the Company Material Contracts. Each Company Material Contract is in full force and effect and is enforceable in accordance with its terms, except for such failures to be in full force and effect and enforceable as would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor, to the Company's knowledge, any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, except for such violations and defaults as would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(b) Except as described set forth in Schedule 2.17the Company SEC Reports filed prior to the date of this Agreement, neither Target Corporation the Company nor any Subsidiary of Target Corporation its Subsidiaries has entered into any transaction with any director, officer or other Affiliate of the Company or any of its Subsidiaries or any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K.
(c) Except for field of use or territorial limits on the rights granted by third parties to the Company or its Subsidiaries set forth in the agreements or instruments granting such rights, (i) there is no non-competition or other similar agreement, commitment, judgment, injunction or order to which the Company or any of its Subsidiaries is a party or subject that has or could reasonably be expected to have the effect of prohibiting or materially impairing the conduct of the business by the Company or any of its Subsidiaries, taken as a whole, and (ii) neither the Company nor any of its Subsidiaries has entered into (or is otherwise bound by) any agreement under which it is restricted, in any material respects, from selling, licensing or otherwise distributing any of its technology or products, or providing its services, to customers or potential customers or any class of customers, in any geographic area, during any period of time.
(d) To the Company's knowledge, neither the Company nor any of its Subsidiaries is a party to any agreement under which a third party would be entitled to receive a license or is bound by any other right to intellectual property of the Buyer or any of the Buyer's Affiliates (iother than the Company and its Subsidiaries) any written or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Packard Bioscience Co), Merger Agreement (Perkinelmer Inc)
Agreements, Contracts and Commitments. Except as described otherwise set forth in Schedule 2.17Part 2.16 of the Company Schedules, as of the date hereof neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result the Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than purchase orders for those that are terminable by the purchase Company or sale any of goods and/or services entered into its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit the Company's or any of its subsidiaries' ability to terminate employees at will;
(b) any agreement, contract or commitment containing any covenant materially limiting the right of the Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(c) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Corporation the Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business, business or (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in pursuant to which the ordinary course of business), Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than the Company's subsidiaries that is material to the Company's business as currently conducted;
(d) any agreement, joint operating contract or similar agreement. The Target Corporation has delivered commitment currently in force to Acquiring Corporation provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a correct and complete copy whole; or Neither the Company nor any of each written agreement listed in Schedule 2.17 its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither the Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in Schedule 2.17. With respect the Company Schedules pursuant to each clauses (a) through (d) above or pursuant to Section 2.9 hereof or are required to be filed with any Company SEC Report (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 2 contracts
Sources: Merger Agreement (Excite Inc), Merger Agreement (At Home Corp)
Agreements, Contracts and Commitments. Except as described otherwise set forth in Schedule 2.17the Launch Disclosure Schedules, neither Target Corporation Launch nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written or oral contractemployment agreement, agreement contract or commitment which involves with any employee or may involve aggregate future payments (whether in payment member of a debt, as a result Launch's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Launch or any of its subsidiaries on no more than 30 days' notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Launch's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services entered into benefits of which will be accelerated, by Target Corporation 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;
(c) any agreement of indemnification outside the ordinary course of Launch's business or any guaranty;
(d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Launch or any of its subsidiaries or a Joint Venture to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Launch or any of its subsidiaries or a Joint Venture after the date of this Agreement of a material amount of assets not in the ordinary course of business, business or (ii) pursuant to which Launch has any employment agreement, non-competition agreement, material ownership interest in any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliancecorporation, partnership, joint ventureventure or other business enterprise other than Launch's subsidiaries or a Joint Venture;
(f) any licensing, joint operating distribution, sponsorship, advertising, merchant program, encoding services, hosting or other similar agreement. The Target Corporation has delivered agreement to Acquiring Corporation which Launch or one of its subsidiaries or a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and Joint Venture is a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation party which may not be canceled by Launch or its Subsidiariessubsidiaries or a Joint Venture, as the case may be, without penalty in excess of $10,000 upon notice of 30 days or less or which provides for payments by Launch or its subsidiaries or a Joint Venture in an amount in excess of $10,000 over the term of the agreement or to Launch or its subsidiaries or a Joint Venture in an amount in excess of $100,000 over the term of the agreement;
(g) any agreement, contract or commitment currently in force to license or provide source code to any third party for any product or technology; or
(Bh) any other agreement, contract or commitment currently in effect that is material to Launch's business as presently conducted. Neither Launch nor any of its subsidiaries, nor to Launch's knowledge any Joint Venture or any other party to a Launch Contract (as defined below), is in breach, violation or default under, and neither Launch nor any of its subsidiaries nor, to the Knowledge knowledge of Target CorporationLaunch, any Joint Venture has received written notice (or to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the agreement will continue material terms or conditions of any of the agreements, contracts or commitments to which Launch or any of its subsidiaries or a Joint Venture is a party or by which it is bound that are required to be Enforceable against disclosed in the other parties thereto following the consummation of the transactions contemplated hereby; Launch Disclosure Schedules pursuant to clauses (Ca) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of through (h) above or is not in default in any material respect under the terms of, pursuant to Section 3.9 hereof (any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Launch Contract") in such a manner as would permit any other party to cancel or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of terminate any such contract, agreement Launch Contract or commitmentseek damages or other remedies the effect of which would have a Material Adverse Effect on Launch.
Appears in 2 contracts
Sources: Merger Agreement (Yahoo Inc), Merger Agreement (Yahoo Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17the Company Schedules, neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result the Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than purchase orders those that are terminable by the Company or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit the Company's or any of its subsidiaries' ability to terminate employees at will and except for potential liabilities for future actions by the purchase or sale of goods and/or services entered into Company to the extent covered by Target Corporation in the ordinary course of business, or WARN Act;
(iib) any employment agreementagreement or plan, non-competition including, without limitation, any stock option plan, stock appreciation right plan, stock purchase plan or restricted stock purchase agreement, any loan of the benefits of which will be increased, or credit agreementthe vesting of benefits of which will be accelerated, security agreement, indenture, mortgage, pledge by the occurrence of any of the transactions contemplated by this Agreement or other instrument evidencing indebtedness the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(other than equipment purchases c) any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between the Company or any sales representativeof its subsidiaries and any of its officers or directors;
(d) any agreement, alliancecontract or commitment containing any covenant limiting the freedom of the Company or any of its subsidiaries to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of a material portion of the assets of the Company and its subsidiaries or any ownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) any material joint operating marketing or similar development agreement. The Target Corporation has delivered Neither the Company nor any of its subsidiaries, nor to Acquiring Corporation the Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) and a written summary setting forth defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (f) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, as well as any agreement, contract or permit terminationcommitment that is an exhibit to any Company SEC Report, modification, or acceleration, under the agreement; and (Ea "COMPANY CONTRACT") to the Knowledge of Target Corporation, no party has repudiated any provision of any in such contract, agreement or commitment.a manner as would
Appears in 2 contracts
Sources: Merger Agreement (Diamond Multimedia Systems Inc), Merger Agreement (Micronics Computers Inc /Ca)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17the Nathan's Schedules, neither Target Corporation Nathan's nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessretirement plans, or any other employee benefit plans or arrangements;
(iic) any employment or consulting agreement, non-competition agreementcontract or commitment with any officer or director level employee, not terminable by Nathan's or any of its subsidiaries on thirty days notice without liability, except to the extent general principles of wrongful termination law may limit Nathan's or any of its subsidiaries' ability to terminate employees at will;
(d) any agreement or plan, including, without limitation, any loan stock option plan, stock appreciation right plan or credit agreementstock purchase plan, security agreementany of the benefits of which will be increased, indentureor the vesting of benefits of which will be accelerated, mortgage, pledge by the occurrence of any of the transactions contemplated by this Agreement or other instrument evidencing indebtedness the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(other than equipment purchases e) any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between Nathan's or any sales representativeof its subsidiaries and any of its officers or directors;
(f) any agreement, alliancecontract or commitment containing any covenant limiting the freedom of Nathan's or any of its subsidiaries to engage in any line of business or compete with any person;
(g) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty;
(h) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint ventureventure or other business enterprise;
(i) any mortgages, joint operating indentures, loans or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation credit agreements, security agreements or its Subsidiaries, as the case may be; (B) other agreements or instruments relating to the Knowledge borrowing of Target Corporationmoney or extension of credit;
(j) any joint marketing or development agreement;
(k) any distribution agreement (identifying any that contain exclusivity provisions); or
(l) any other agreement, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement contract or commitment described in Schedule 2.17, (excluding real and to the Knowledge personal property leases) which involves payment by Nathan's or any of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, subsidiaries under any such contractagreement, agreement contract or commitment; commitment of $100,000 or more in the aggregate and is not cancelable without penalty within thirty (D30) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentdays.
Appears in 2 contracts
Sources: Merger Agreement (Nathans Famous Inc), Merger Agreement (Nathans Famous Inc)
Agreements, Contracts and Commitments. Except as described in Section 3.01(bb) of the Company Disclosure Schedule 2.17lists all Contracts, neither Target Corporation nor commitments and understandings of any kind to which the Company or its Subsidiary of Target Corporation is a party or by or to which the Company, its Subsidiary or any of their respective properties or assets is bound by or subject, whether or not in writing, (i) any written or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by material to the continued conduct of the business of the Company and its terms, terminable by Target Corporation Subsidiary as currently conducted or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or as currently contemplated to be conducted; (ii) which is with respect to the Company's San Diego facility contract services business and under which the Company has any employment agreementcurrent or future obligation to provide any products or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually or $250,000 in the aggregate; (iv) which includes any non-competition, non-competition agreementsolicitation, standstill or similar restrictions or undertakings on the Company or its Subsidiary; (v) pursuant to which the Company or its Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any loan other Person or credit agreementpursuant to which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or its Subsidiary; (vi) which provides for any mortgage, pledge, security agreement, indenture, mortgage, pledge deed of trust or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights of the ordinary course of business), Company or its Subsidiary or any sales representativeother material assets or group of assets of the Company or its Subsidiary; or (vii) which is not terminable by the Company or its Subsidiary by notice of not more than 30 days without the payment of any material penalty or premium. Each Contract, alliance, partnership, joint venture, joint operating commitment or similar agreement. The Target Corporation has delivered understanding required to Acquiring Corporation a correct and complete copy of each written agreement be listed in Section 3.01(bb) of the Company Disclosure Schedule 2.17 (as amended to datecollectively, the "Company Material Contracts") is in full force and a written summary setting forth effect and is enforceable against the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation Company or its SubsidiariesSubsidiary (and, as the case may be; (B) to the Knowledge knowledge of Target Corporationthe Company, the agreement will continue to be Enforceable against the other parties thereto following thereto) in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the consummation of Company nor its Subsidiary nor, to the transactions contemplated hereby; (C) neither Target Corporation nor Company's knowledge, any Subsidiary of Target Corporation other party to any Company Material Contract is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach violation of or in default under (nor does there exist any condition which, upon the terms passage of time or the giving of notice or both, would cause such a violation of or default under) any such contractCompany Material Contract, agreement or commitment, or permit termination, modification, or acceleration, under which in each case would reasonably be expected to materially impair the agreement; and (E) benefits expected to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentbe derived therefrom.
Appears in 2 contracts
Sources: Merger Agreement (Matrix Pharmaceutical Inc/De), Merger Agreement (Matrix Pharmaceutical Inc/De)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17As of the date hereof, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments (whether in payment of a debt, as a result of a guarantee the transactions contemplated hereby, (iii) any agreement with any employee, consultant or indemnificationshareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay;
(b) any agreement or plan, for goods including, without limitation, any stock option plan, stock appreciation right plan or services stock purchase plan, any of the benefits of which will be increased, or otherwisethe 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;
(c) by any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company;
(d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to Target Corporation of $100,000 compete with any person or more and which is notgranting to any person any interest in Company's distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by its terms, terminable by Target Corporation Company or one or more any of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for subsidiaries after the purchase or sale date of goods and/or services entered into by Target Corporation this Agreement of a material amount of assets not in the ordinary course of businessbusiness or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;
(f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person;
(g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(h) any settlement agreement relating to any claim or suit;
(i) any real property lease covering more than 20,000 square feet;
(j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment revenues generated by purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, on any such contract, agreement website; or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitment.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Homegrocer Com Inc), Agreement and Plan of Reorganization (Homegrocer Com Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section 2.15 and Section 2.2(b) of the Company Disclosure Letter, neither Target Corporation nor any Subsidiary of Target Corporation the Company is not a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessmanager level employee, other than those that are terminable by the Company on no more than thirty (30) days notice without liability or financial obligation;
(b) any agreement or plan, including, without limitation, any securities option plan, securities appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, any loan agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business)business other than indemnification agreements between the Company and any of its officers or managers;
(d) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any sales representative, allianceownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) any material joint operating marketing or similar development agreement. The Target Corporation has delivered Company, or to Acquiring Corporation the Company’s knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) and a written summary setting forth defined herein), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (f) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a “Company Contract”) in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to be material to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license or purchase of products or services in the ordinary course of business;
(d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;
(f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (ii90) days or less;
(g) any employment agreement, non-competition contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(h) any material agreement, any loan contract or credit agreementcommitment, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease standard end-user license agreements and related maintenance and support agreements entered into in the ordinary course of business, currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(i) any mortgages, leases, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or
(k) any other agreement, contract or commitment that has a value of $250,000 or more individually. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any sales representative, alliance, partnership, joint venture, joint operating of its subsidiaries is a party or similar agreement. The Target Corporation has delivered by which it is bound that are required to Acquiring Corporation a correct and complete copy of each written agreement listed be disclosed in the Company Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould reasonably be expected, under either individually or in the agreement; and (E) aggregate, to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentresult in a Material Adverse Effect on Company.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Proxim Inc /De/)
Agreements, Contracts and Commitments. Except as described otherwise set forth in Schedule 2.17Part 2.14 of the Company Letter, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written or oral contractemployment agreement, agreement contract or commitment which involves with any employee or may involve aggregate future payments (whether in payment member of a debt, as a result Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Company's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders 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;
(c) any agreement of indemnification, any guaranty or any instrument evidencing indebtedness for the purchase or borrowed money by way of direct loan, sale of goods and/or services entered into debt securities, purchase money obligation, conditional sale, or otherwise;
(d) any agreement, obligation or commitment containing covenants purporting to limit or which effectively limit the Company's or any of its subsidiaries' freedom to compete in any line of business or in any geographic area or which would so limit Company or Surviving Corporation or any of its subsidiaries after the Effective Time or granting any exclusive distribution or other exclusive rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Corporation Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of businessbusiness or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;
(f) any licensing, distribution, marketing, reseller, merchant services, advertising, sponsorship or other similar agreement other than Ordinary Course Agreements;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology; or
(i) any other agreement, contract or commitment currently in effect that is material to Company's business as presently conducted and proposed to be conducted entered into since the filing of Company's Quarterly Report on Form 10-Q for the Fiscal Quarter ending March 31, 1999, or (ii) any employment amendment or modification to any agreement, noncontract or commitment required to be publicly filed by Company pursuant to the Exchange Act which has not been so filed as a result of such amendment or modification having been entered into subsequent to the filing of such Form 10-competition Q. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Letter pursuant to clauses (a) through (h) above, pursuant to Section 2.9 hereof, or pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act (any such agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Merger Agreement (At Home Corp)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(a) any written employment or consulting agreement, contract or commitment with any officer, director, Company employee or member of Company's Board of Directors, other than (i) those that are terminable by Company or any written of its subsidiaries on no more than thirty (30) days' notice without liability or oral contractfinancial obligation to Company, all Company Benefit Plans and International Benefit Plans and (ii) employment or similar agreements with foreign employees;
(b) any agreement or commitment plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which involves will be increased, or may involve aggregate future payments (whether in payment the vesting of a debt, as a result benefits of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is notwill be accelerated, by its terms, terminable the occurrence of any of the transactions contemplated by Target Corporation this Agreement or one the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any material agreement of indemnification or more of its Subsidiaries without penalty or payment on 30 days notice or less, any guaranty other than purchase orders for any agreement of indemnification entered into in connection with the purchase or sale of goods and/or services entered into by Target Corporation products in the ordinary course of business, or ;
(iid) any employment material agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to compete with any person or entity in any line of business or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(f) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except (i) agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent and (ii) agreements, contracts or commitments involving revenues to the Company for the fiscal year ended June 30, 2000 of greater than $1,485,000;
(h) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments evidencing the borrowing of money or extension of credit;
(j) any material settlement agreement under which Company has ongoing obligations; or
(k) any agreement with a customer of the Company involving revenues to the Company for the fiscal year ended June 30, 2000 in excess of $1,485,000. The Target Corporation has delivered Neither Company nor any of its subsidiaries, nor to Acquiring Corporation Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in material breach, violation or default under, and a neither Company nor any of its subsidiaries has received written summary setting forth notice that it has materially breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule 2.17. With respect to each (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmenta "COMPANY CONTRACT").
Appears in 1 contract
Sources: Merger Agreement (Objective Systems Integrators Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section ------------------------------------- 2.16 of the Company Schedule, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any executive officer or may involve aggregate future payments (whether in payment higher level employee or member of a debt, as a result Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, material agreement of indemnification or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (guaranty other than equipment purchases or lease agreements any agreement of indemnification entered into in the ordinary course of business);
(d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any sales representativeof its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, alliancecontract or commitment that directly or indirectly prevents Company or any of its subsidiaries from providing services to or performing work for competitors of any customer of Company or any other similar restriction imposed on Company by a customer.
(f) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(g) any customer, joint operating dealer, distributor, marketing or similar development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to provide any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement entered into outside the ordinary course pursuant to which Company or any of its subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(i) [Intentionally left blank.]
(j) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $2,000,000 individually;
(k) any material settlement agreement entered into within two (2) years prior to the date of this Agreement;
(l) any agreement entered into in the ordinary course of business providing for revenue to Company derived from North America of more than $3,000,000; or
(m) any other agreement, contract or commitment that has a value of $5,000,000 or more individually other than in the ordinary course of business. The Target Corporation has delivered Neither Company nor any of its subsidiaries, nor to Acquiring Corporation Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule 2.17. With respect to each (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Merger Agreement (Novell Inc)
Agreements, Contracts and Commitments. Except as described otherwise set forth in Schedule 2.17the Company Schedules, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Company's or any of its subsidiaries' ability to terminate employees at will;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(f) any joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, joint operating technology or similar service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; or
(g) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology except as a distributor in the normal course of business. The Target Corporation has delivered Neither Company nor any of its subsidiaries, nor to Acquiring Corporation Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in Schedule 2.17. With respect the Company Schedules pursuant to each clauses (a) through (h) above or pursuant to Section 2.9 hereof (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation nor any Subsidiary of Target Corporation The Company is not a party to or is bound by:
(a) any employment or consulting Contract with any officer or director or higher level employee or member of the Company's Board of Directors, other than offer letters granted and employee invention assignment agreements entered into upon the commencement of employment of an officer or higher-level employee (provided that such agreements do not contain any excepted inventions that are related to any Intellectual Property used in connection with the Company Products) and stock option and stock option exercise agreements entered into with such officers and employees, in each case, pursuant to the standard forms and as previously provided to Parent (with no material differences from the terms of such standard forms);
(b) any Contract or plan, including, without limitation, any stock option plan, or stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased or triggered, 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;
(c) any Contract of indemnification or any guaranty other than any Contract of indemnification entered into in connection with the sale, license, distribution and development of Intellectual Property and advertising in the Ordinary Course of Business;
(d) any Contract containing any covenant limiting in any respect the right of the Company to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any Contract currently in force relating to the disposition or acquisition by the Company after the date of this Agreement of assets not in the Ordinary Course of Business
(f) any Contract pursuant to which the Company has any ownership interest in, or has any obligation or commitment to obtain any ownership interest in, any corporation, partnership, joint venture or other business enterprise;
(g) any dealer, distributor, joint marketing or development Contract currently in force under which the Company has a continuing obligation to jointly market any product, technology or service and which may not be canceled without penalty upon notice of one hundred eighty (180) days or less, or any Contract pursuant to which the Company has a continuing obligation to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company and which may not be canceled without penalty upon notice of one hundred eighty (180) days or less;
(h) any Contract currently in force to provide source code to any third party for any product or technology;
(i) any written Contract currently in force to license any third party to manufacture or oral contractreproduce any Company product, agreement service or commitment which involves technology or may involve aggregate future payments any Contract currently in force to sell or distribute any Company products, service or technology;
(whether in payment j) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts or instruments relating to the borrowing of a debt, as a result money or extension of a guarantee credit or indemnification, for goods granting any Lien on any assets or services or otherwise) by or to Target Corporation properties of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessthe Company, other than purchase orders capital equipment leases with aggregate annual payments of less than $10,000;
(k) any settlement agreement entered into prior to the date of this Agreement pursuant to which the Company has continuing obligations or rights;
(l) any other Contract that requires aggregate payments by the Company thereunder of $30,000 or more individually;
(m) any Contract (or group of related Contracts) for the lease of personal property to or from any person that involves aggregate annual payments of more than $20,000;
(n) any Contract under which the consequences of a default or termination could reasonably be anticipated to have a Material Adverse Effect on the Company;
(o) any Contract (or group of related Contracts) for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businesscommodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than six (ii6) months or involve consideration in excess of $20,000;
(p) any employment agreementContract for the purchase of supplies, non-competition agreementcomponents, products or services from single source suppliers, custom manufacturers or subcontractors that involves aggregate annual payments of more than $20,000;
(q) any loan Contract concerning a partnership or credit agreement, security agreement, indenture, mortgage, pledge joint venture;
(r) any Contract with any Company Shareholder or other instrument evidencing indebtedness any of such Company Shareholder's Affiliates (other than equipment purchases the Company) or lease with any Affiliate of the Company;
(s) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current directors, officers or employees, or for the benefit of former directors, officers or employees under which the Company has further obligations;
(t) any collective bargaining agreement;
(u) any executory agreement under which the Company has advanced or loaned any amount to any of its directors, officers, and employees;
(v) any advertising services, e-commerce or other Contract involving the promotion of products and services of third parties by the Company;
(w) any executory Contract pursuant to which the Company is obligated to provide maintenance, support or training for its services or products;
(x) any revenue or profit participation Contract which involves aggregate annual payments of more than $20,000; and
(y) any Contract pursuant to which the Company or any Affiliate of the Company has granted any rights to any third party with respect to any of the Intellectual Property used in the Company's business, other than license agreements entered into with customers or distributors of the Company's Music Service entered into in the ordinary course Ordinary Course of businessBusiness. Neither the Company, nor to the Company's Knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and the Company has not received written notice that it has breached, violated or defaulted under, any sales representative, alliance, partnership, joint venture, joint operating of the material terms or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred any of the Contracts to which the Company is a party or by which it is bound that are required to be disclosed in the Company Schedule 2.17. With respect to each (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement Contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to seek material damages or permit terminationother material remedies (for any or all of such breaches, modificationviolations or defaults, in the aggregate) or accelerationwould otherwise have a Material Adverse Effect on the Company, under individually or in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate.
Appears in 1 contract
Sources: Merger Agreement (Realnetworks Inc)
Agreements, Contracts and Commitments. Except Sections 4.11(a) through 4.11(v) of the Disclosure Schedule, respectively, contain a true and complete list as of the date hereof of all material Contracts and other documents of the following types (for purposes of this Section 4.11, a Contract or other document described in Schedule 2.17subparagraphs (a) through (v) shall be deemed to be material if it meets the dollar threshold specified in the applicable subparagraph), neither Target Corporation nor any Subsidiary of Target Corporation written or oral, to which the Company is a party or by which the business or any of the assets of the Company are bound as of the date hereof (true and complete copies or, if none, written descriptions, of which have been provided or made available to CompuCom, together with all exhibits, amendments or is bound modifications thereto):
(a) all notes, loans, credit agreements, letters of credit, mortgages, guarantees, surety or indemnification agreements, indentures, security agreements and other Contracts and instruments (i) relating to the borrowing of money by or on behalf of, or the extension of credit to, the Company, (ii) evidencing any Indebtedness or other liabilities of the Company or the guarantee by the Company of the Indebtedness or other liabilities of any other Person, or (iii) evidencing any keep-well or similar obligations of the Company with respect to any other Person;
(b) all Contracts or other instruments evidencing, creating or suffering to exist any Liens of any kind on the properties and assets of the Company;
(c) all licenses or permits from any Tribunal required to conduct the business of the Company as presently conducted;
(d) all employment, agency, consultation, severance and collective bargaining Contracts, including, without limitation, Contracts to employ, and other Contracts with, (i) any written present officer, director, employee, agent, consultant or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment other similar representative of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, Company or (ii) any employment agreementformer officer, non-competition agreementdirector, employee, agent, consultant or similar representative of the Company that left the employ or engagement of the Company within the preceding 12 months and to whom the Company has any continuing payment obligations;
(e) all sales, agency, representatives, broker, finders, franchise, dealers or distributorship Contracts;
(f) all Contracts, orders or commitments for the purchase by the Company of raw materials, supplies, finished products or any other properties and assets (excluding inventory for resale) in an amount exceeding $50,000;
(g) all Contracts, orders or commitments for the disposition of or license, sale or lease to customers or any other Persons of products or services (including, without limitation, any loan item of Software and any related maintenance or credit agreementsupport services) or any other properties or assets of the Company in an amount exceeding $100,000 individually or $500,000 in the aggregate, security agreementwith specific designation of those Contracts, indentureorders or commitments that are not evidenced by form Contracts previously provided to CompuCom;
(h) all noncompetition, mortgagenondisclosure, pledge or other instrument evidencing indebtedness (confidentiality and similar Contracts, other than equipment purchases or lease agreements those that were entered into in the ordinary course of business)business consistent with past practice which contain any covenant, provision or obligation limiting in any manner whatsoever (whether during any particular period of time from and after the Closing Date, in certain geographic areas or otherwise) the ability of (i) the Company, or any sales representativeof the employees of the Company, allianceto engage in any line of business, to compete with any Person or to obtain from, or provide to, any Person any products or services or (ii) any Person to compete with or provide products or services to the Company;
(i) all Contracts or commitments that provide for the provision of any goods, or the rendition of any services, to the Company and that are not terminable on notice of 30 days or less without penalty or premium other than customary maintenance agreements relating to computer equipment or Software used by the Company, the terms of which contain no liabilities (other than to pay for the maintenance services) or material obligations;
(j) all Contracts or commitments for capital expenditures relating to the business of the Company in an amount in excess of $25,000 for any single item;
(k) all partnership, joint venture, joint operating profit sharing or similar agreement. The Target Corporation Contracts;
(l) all leases or subleases of real property used in the Company's business, operations and affairs, and all other leases, subleases or rental or use Contracts that involve a consideration or expenditure of more than $50,000 for the entire term thereof;
(m) all Contracts or arrangements (including, without limitation, those relating to allocations of expenses, personnel, services, equipment or facilities) between or among the Company on the one hand and any Affiliates of the Company on the other;
(n) all Contracts or commitments that involve a consideration or expenditure of more than $50,000 for the entire term thereof;
(o) all Contracts pursuant to which the Company may have granted, or agreed to grant, to another Person exclusive rights with respect to any goods or services, items of Software or territory;
(p) all outstanding proxies, powers of attorney or similar delegations of authority of the Company;
(q) all Contracts pursuant to which the Company may have granted, or agreed to grant (whether or not any requirement such as the giving of notice, the lapse of time or the happening of any further condition, event or act has been satisfied), to another Person the right to sublicense or transfer any Software;
(r) all Contracts pursuant to which the Company or any of its Affiliates may have delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 another Person, or granted or agreed to grant (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each whether or not any requirement such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case giving of notice, the lapse of time or the happening of any further condition, event or act has been satisfied) to another Person the rights to obtain, any source code to any Software (including, without limitation, any source code escrow Contract);
(s) all Contracts pursuant to which the Company or any of its Affiliates may be; have delivered to another Person, or granted or agreed to grant (Bwhether or not any requirement such as the giving of notice, the lapse of time or the happening of any further condition, event or act has been satisfied) to another Person the rights to obtain, any Software "keys" allowing access to additional modules or programs of any Software;
(t) all performance bonds posted by the Company or any of its Affiliates;
(u) to the Knowledge of Target Corporation, the agreement will continue extent not required to be Enforceable against disclosed elsewhere in this Section 4.11, all Contracts not entered into in the ordinary course of business consistent with past practice;
(v) all Contracts and commitments requiring the Consent of, or the waiver by, any suppliers, distributors, customers, licensees, licensors, insurers or other Persons in connection with the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby on the part of the Company. Each Contract disclosed or required to be disclosed pursuant to any clause of Section 4.11 is in full force and effect, constitutes a legal, valid and binding obligation of the Company and, to the best knowledge of the Company, the other parties thereto, and is enforceable against each of them in accordance with its terms. Except for obtaining the Consents required under any of the Contracts set forth in Section 4.11(v) of the Disclosure Schedule, the terms of each such Contract allow the succession of the Company by the Surviving Corporation as party thereto following (and on the Effective Time, the Surviving Corporation will so succeed the Company) pursuant to the transactions contemplated hereby without requiring any payment to any Person or any waiting period, payment of any charge, fee or expense or any notice to any Person, including, without limitation, any transfer fee, relicensing fee or other fee with respect to Software. Except in the case of any Contracts as to which Consent is required as disclosed in Section 4.11(v) of the Disclosure Schedule or as otherwise disclosed in Section 4.11 of the Disclosure Schedule, the enforceability of each Contract disclosed or required to be disclosed pursuant to any clause of Section 4.11, and the enjoyment of all the rights and benefits thereunder, will not be affected in any manner by the execution and delivery of this Agreement, the performance by the parties of their obligations hereunder and the consummation of the transactions contemplated hereby; (C) . Except as set forth in Section 4.11 of the Disclosure Schedule, neither Target Corporation nor the Company nor, to the best knowledge of the Company, any Subsidiary of Target Corporation other party to any such Contract is in breach under or default thereunder, no notice of default, defense, offset, counterclaim, termination, cancellation or acceleration has been received by any material provision of or is not party thereto in default in any material respect under the terms ofconnection therewith and, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge best knowledge of Target Corporationthe Company, no event has occurred and no condition exists whichthat would constitute a breach, after violation or default or give rise to any right of offset, counterclaim, termination, cancellation or acceleration thereunder (with or without notice or lapse of time or both, would constitute ). The Company does not have any present expectation or intention of not fully performing any such a material breach Contract substantially in accordance with its terms. The Company does not know or default by Target Corporation or its Subsidiarieshave reason to know of any threat to cancel, or permit terminationnot to renew or extend, modification, or acceleration, under any such contract, agreement or commitment; (D) Contract by any party thereto. There are no material disputes with respect to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement Contract. The Company has furnished CompuCom with a true and complete list of all outstanding bids involving amounts exceeding $500,000 for new business or commitment, prospects submitted by the Company or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge any of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentits Affiliates.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17As of the date of this Agreement, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether employee of Company or any of its subsidiaries currently earning an annual salary in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation excess of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more member of its Subsidiaries without penalty or payment on 30 days notice or lessCompany's Board of Directors, other than purchase orders for those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without material liability or financial obligation to Company, except to the purchase extent general principles of law may limit Company's ability to terminate employees at will;
(b) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale of goods and/or services entered into by Target Corporation products or license of technology in the ordinary course of business, or ;
(iic) any employment agreement, non-competition contract or commitment containing any covenant limiting the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(d) any agreement, contract or commitment relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(e) any material dealer, distributor, joint operating marketing or similar development agreement under which Company or any of its subsidiaries have continuing obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any agreement pursuant to which Company or any of its subsidiaries have continuing obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(f) any material agreement, contract or commitment to license any third party to manufacture or reproduce any Company product, service or technology or any material agreement, contract or commitment to sell or distribute any Company products, service or technology except agreements with distributors or sales representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Company or any of its subsidiaries or extension of credit (other than customer accounts receivable owing to Company or any of its subsidiaries in the ordinary course of business and payable or dischargeable in accordance with customary trade terms);
(h) any material settlement agreement under which Company or any of its subsidiaries has ongoing obligations;
(i) any other agreement, contract or commitment that calls for the payment or receipt by Company or any of its subsidiaries of $1,000,000 or more;
(j) any agreement under which the consequences of a default could reasonably be expected to have a Material Adverse Effect on Company; or (k) any other agreement, contract or commitment that is of the nature required to be filed by Company as an exhibit to a Report on Form 10-K under the Exchange Act which has not already been filed. The Target Corporation Company has delivered or made available to Acquiring Corporation Parent a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as defined below) as amended to date) . Each Company Contract, with respect to Company and any relevant subsidiary and, to Company's knowledge, all other parties thereto, is legal, valid, binding, enforceable and in full force and effect in all respects. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract, is in breach, violation or default under a Company Contract. Neither Company nor any of its subsidiaries has received written summary setting forth notice within the last twelve months that it has breached, violated or defaulted under, any of the terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule 2.17. With respect pursuant to each this Section 2.18 (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Telcom Semiconductor Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17the ------------------------------------- MetaTools Schedules, neither Target Corporation MetaTools nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result MetaTools' Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by MetaTools or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit MetaTools' or any of its subsidiaries' ability to terminate employees at will;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, any loan agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between MetaTools or any sales representativeof its subsidiaries and any of its officers or directors;
(d) any agreement, alliancecontract or commitment containing any covenant limiting the freedom of MetaTools or any of its subsidiaries to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) any material joint operating marketing or similar development agreement. The Target Corporation has delivered Neither MetaTools nor any of its subsidiaries, nor to Acquiring Corporation MetaTools' knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 MetaTools Contract (as amended to date) and a written summary setting forth defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which MetaTools or any of its subsidiaries is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (l) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "METATOOLS CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such MetaTools Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentbe material to MetaTools.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Fractal Design Corp)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation ------------------------------------- its material subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Company's or any of its subsidiaries' ability to terminate employees at will;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any material respect the right of Company or any of its material subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any material agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(f) any material joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, joint operating technology or similar service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; or
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology except as a distributor in the normal course of business. The Target Corporation has delivered Neither Company nor any of its material subsidiaries, nor to Acquiring Corporation Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in Schedule 2.17. With respect the Company Schedules pursuant to each clauses (a) through (h) above or pursuant to Section 2.9 hereof (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (McAfee Associates Inc)
Agreements, Contracts and Commitments. (a) Except as described set forth in Schedule 2.172.12(a) of the Stockholder Disclosure Letter, as of the date hereof, neither Target Corporation the Company, WW nor any Subsidiary of Target Corporation has, is a party to or to, is bound by by, and the Business is not the beneficiary of, or subject to, any of the following (those agreements, arrangements, contracts or commitments to which the Business is subject, but to which the Company, WW or the Subsidiaries is not, as between the Stockholder or its subsidiaries (other than the Company, WW and the Subsidiaries) and the Company, WW and the Subsidiaries, are clearly marked as such on Schedule 2.12(a)):
(i) any written collective bargaining agreements,
(ii) any agreements or oral contractarrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company, WW or any Subsidiary,
(v) any agreement or plan, 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,
(vi) any agreement or plan to issue, grant, deliver or sell or authorize, or that proposes the issuance, grant, delivery or sale of, or to purchase or that proposes the purchase of, any shares, or any rights attached to any shares, in the Company, WW or any Subsidiary or any securities convertible into or exchangeable for shares in the Company, WW or any Subsidiary, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any shares in the Company, WW or any Subsidiary or other convertible securities,
(vii) any fidelity or surety bond or completion bond,
(viii) any lease of personal property requiring payments over the term of such lease or series of related leases individually in excess of $200,000 or any lease of real property,
(ix) any agreement of indemnification or guaranty,
(x) any agreement, contract or commitment which involves containing any covenant limiting the freedom of the Company, WW or may involve aggregate any Subsidiary to engage in any line of business or to compete with any person,
(xi) any agreement, contract or commitment relating to capital expenditures or involving future payments or a series of related payments in excess of $100,000,
(whether xii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in payment any business enterprise outside the ordinary course of a debtthe Company's or WW's business, as applicable,
(xiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (ix) hereof,
(xiv) any purchase order or contract for the purchase of raw materials involving $50,000 or more,
(xv) any construction contracts involving future payments or a result series of related payments in excess of $50,000,
(xvi) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use of distribution of the Company's or WW's products, technologies or services;
(xvii) any distribution, joint marketing or development agreement that includes any provision granting any person a guarantee right of first refusal, right of first negotiation or indemnificationexclusive, "most favored nation" or preferential placement or other preferential rights,
(xviii) any agreement pursuant to which the Company, WW or any Subsidiary has developed for goods and/or delivered to or services has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property,
(xix) any agreement, contract or otherwisecommitment for the purchase of advertising,
(xx) by any other agreement, contract or to Target Corporation of commitment that involves $100,000 or more and which or is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries not cancelable without penalty within thirty (30) days
(b) Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or payment on 30 days notice or lessdefault with the lapse of time, other than purchase orders for the purchase or sale giving of goods and/or services entered into by Target Corporation in the ordinary course of businessnotice, or (ii) any employment agreementboth, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed as are all noted in Schedule 2.17 (as amended to date2.12(b) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) Stockholder Disclosure Letter, neither Target Corporation the Company, WW nor any Subsidiary nor the Stockholder nor any of Target Corporation is in breach under its subsidiaries has materially breached, violated or defaulted under, or received written notice that it has materially breached, violated or defaulted under, any material provision of or is not in default in any material respect under the terms ofor conditions of any agreement, contract or commitment required to be set forth on Schedule 2.12(a) of the Stockholder Disclosure Letter or Schedule 2.11(g) of the Stockholder Disclosure Letter (any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, or permit terminationa "Contract"). Each Contract is in full force and effect (assuming the Contracts have been duly authorized, modification, or acceleration, under executed and delivered by the agreement; respective other parties thereto) and (E) is not subject to any default thereunder of which the Stockholder has Knowledge by any party obligated to the Knowledge of Target CorporationCompany, no party has repudiated WW or any provision of any such contract, agreement or commitmentSubsidiary pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cendant Corp)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17(a) As of the date of this Agreement, neither Target Corporation Sipex nor any Subsidiary of Target Corporation its Subsidiaries is a party to or is bound by by:
(i) (A) any written employment or oral contractconsulting Contract with any officer or member of Sipex’s Board of Directors or (B) any employment or consulting Contract with any Sipex employee, agreement consultant or commitment independent contractor involving salary of greater than $200,000 per year;
(ii) any Contract, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which involves will be increased, or may involve aggregate future payments (whether in payment the vesting of a debt, as a result benefits of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is notwill be accelerated, by its terms, terminable the occurrence of any of the transactions contemplated by Target Corporation this Agreement or one the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of material indemnification or more any material guaranty by Sipex other than any agreement of indemnification or guaranty entered into in the ordinary course of business on Sipex’s standard forms of indemnification or guaranty (forms of which are attached to Section 3.16(a)(iii) of the Sipex Schedules);
(iv) any Contract (A) containing any covenant limiting in any respect the right of Sipex or any of its Subsidiaries without penalty to engage in any line of business or payment on 30 days notice to compete with any Person or lessin any geographic area, (B) granting any exclusive rights (including distribution rights), or (C) purporting to limit the ability of Sipex or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or any business;
(v) any Contract (A) relating to the disposition or acquisition by Sipex or any of its Subsidiaries after the date of this Agreement of capital stock or other than purchase orders for the purchase equity interests or sale a material amount of goods and/or services entered into by Target Corporation assets or not in the ordinary course of business, (B) pursuant to which Sipex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Sipex’s Subsidiaries, or (iiC) entered into in the last three (3) years relating to the acquisition or disposition by Sipex or any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge of its Subsidiaries of stock or other instrument evidencing indebtedness (other than equipment purchases equity interests or lease agreements entered into a material amount of assets not in the ordinary course of business;
(vi) (A) joint marketing or development Contract currently in force under which Sipex or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service (including any Intellectual Property that will not be owned, in whole or in part, by Sipex or any of its Subsidiaries), or (B) any sales representativejoint venture or partnership Contract;
(vii) Contract currently in force to provide source code to any third party;
(viii) any Contract currently in force to authorize or license any third party to manufacture or reproduce any Sipex product, allianceservice or technology;
(ix) any mortgages, partnershipindentures, joint ventureguarantees, joint operating loans or similar agreement. The Target Corporation has delivered credit agreements, security agreements or other agreements or instruments relating to Acquiring Corporation a correct and complete copy the borrowing of each written money or extension of credit;
(x) any leases for personal property involving payments in excess of $200,000 annually (including capital leases);
(xi) any settlement agreement listed in Schedule 2.17 entered into within three (as amended 3) years prior to date) and a written summary setting forth the terms and conditions date of each oral agreement referred to in Schedule 2.17. With this Agreement with respect to each such agreement: which Sipex has continuing obligations;
(xii) any Contracts with Sipex’s top 10 distributors, independent sales representatives or others distributing Sipex’s products (measured by revenue) for the last 12 months;
(xiii) any Contract (A) pursuant to which Sipex is required to provide notice of the agreement discontinuance or end-of-life of any product, or (B) a continuity of supply Contract or any other Contract pursuant to which Sipex is Enforceable against Target Corporation required to provide a product for a fixed period of time;
(xiv) any Contract with the top 10 non-distributor customers of Sipex and its Subsidiaries taken as a whole (measured by revenue) in the last 12 months;
(xv) any other Contract that, either individually or taken together with all other contracts with the same party, (i) has in the last 12 months resulted in payments being made to Sipex in excess of $250,000 or (ii) is expected by Sipex, if fulfilled in accordance with its terms, to result in payments being made to Sipex in excess of $250,000 in the next 12 months;
(xvi) any other Contract that, either individually or taken together with all other contracts with the same party, (i) has in the last 12 months resulted in payments being made by Sipex in excess of $250,000 or (ii) is expected by Sipex, if fulfilled in accordance with its terms, to result in payments being made by Sipex in excess of $250,000 in the next 12 months; and
(xvii) any other Contract deemed to be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC.
(b) Neither Sipex nor any of its Subsidiaries, as nor to Sipex’s knowledge any other party to a Sipex Contract is in material breach, violation or default under, and neither Sipex nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the case may be; (B) terms or conditions of any of the Contracts to the Knowledge which Sipex or any of Target Corporation, the agreement will continue its Subsidiaries is a party or by which it is bound that are required to be Enforceable against disclosed in the other parties thereto following the consummation of the transactions contemplated hereby; Sipex Schedules (Cincluding Sections 3.13(b), 3.8 and 3.16 (a)) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, (any such contractContract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentan “Sipex Contract”).
Appears in 1 contract
Sources: Merger Agreement (Sipex Corp)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation its ------------------------------------- subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result MCS's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by MCS or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to MCS;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of MCS or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by MCS or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which MCS has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than MCS's subsidiaries;
(f) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which MCS or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which MCS or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by MCS or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement. The Target Corporation has delivered , contract or commitment currently in force to Acquiring Corporation provide source code to any third party for any product or technology that is material to MCS and its subsidiaries taken as a correct whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any MCS product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any MCS products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and complete copy of each written agreement listed substantially in Schedule 2.17 the form previously provided to NetIQ;
(as amended to datei) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation any mortgages, indentures, guarantees, loans or its Subsidiariescredit agreements, as the case may be; (B) security agreements or other agreements or instruments relating to the Knowledge borrowing of Target Corporationmoney or extension of credit;
(j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or
(k) any other agreement, the agreement will continue to be Enforceable against the contract or commitment that has a value of $2,000,000 or more individually, other parties thereto following the consummation of than the transactions contemplated hereby; (C) neither Target Corporation by the LOI. Neither MCS nor any Subsidiary of Target Corporation its subsidiaries, nor to MCS's knowledge any other party to a MCS Contract (as defined below), is in breach under breach, violation or default under, and neither MCS nor any material provision of its subsidiaries has received written notice that it has breached, violated or is not in default in any material respect under the terms ofdefaulted under, any such contractof the material terms or conditions of any of the agreements, agreement contracts or commitment described commitments to which MCS or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under MCS Schedules (any such contractagreement, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "MCS Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such MCS Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary ------------------------------------- of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result NetIQ's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by NetIQ or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to NetIQ;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of NetIQ or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by NetIQ or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which NetIQ has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than NetIQ's subsidiaries;
(f) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which NetIQ or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which NetIQ or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by NetIQ or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement. The Target Corporation has delivered , contract or commitment currently in force to Acquiring Corporation provide source code to any third party for any product or technology that is material to NetIQ and its subsidiaries taken as a correct whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any NetIQ product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any NetIQ products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and complete copy of each written agreement listed substantially in Schedule 2.17 the form previously provided to MCS;
(as amended to datei) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation any mortgages, indentures, guarantees, loans or its Subsidiariescredit agreements, as the case may be; (B) security agreements or other agreements or instruments relating to the Knowledge borrowing of Target Corporationmoney or extension of credit;
(j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or
(k) any other agreement, contract or commitment that has a value of $2,000,000 or more individually, other than in the agreement will continue event of an assignment of the LOI pursuant to be Enforceable against the other parties thereto following the consummation of Section 5.20, the transactions contemplated hereby; (C) neither Target Corporation by the LOI. Neither NetIQ nor any Subsidiary of Target Corporation its subsidiaries, nor to NetIQ's knowledge any other party to a NetIQ Contract (as defined below), is in breach under breach, violation or default under, and neither NetIQ nor any material provision of its subsidiaries has received written notice that it has breached, violated or is not in default in any material respect under the terms ofdefaulted under, any such contractof the material terms or conditions of any of the agreements, agreement contracts or commitment described commitments to which NetIQ or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under NetIQ Schedules (any such contractagreement, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "NetIQ Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such NetIQ Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Mission Critical Software Inc)
Agreements, Contracts and Commitments. Except as described set forth in Section 2.17 of the Disclosure Schedule 2.17(specifying the appropriate paragraph), neither Target Corporation the Company nor any Subsidiary of Target Corporation its Subsidiaries is a party to or to, nor is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with an employee or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee individual consultant or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness salesperson (other than equipment purchases or lease “at will” employment agreements entered into in the ordinary course of businessbusiness that do not provide for severance payments, a notice period upon termination, change of control payments, acceleration of obligations (including vesting of options or otherwise) or other benefits not disclosed in Section 2.24(b) of the Disclosure Schedule), 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, or commitment with a firm or other organization;
(ii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan (A) relating to the sale, issuance, grant, exercise, award, purchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants, or other rights therefore, except for the Plan, or (B) 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;
(iii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value in excess of $25,000 individually or $100,000 in the aggregate;
(v) any lease of real property;
(vi) any agreement of indemnification or guaranty (except pursuant to End User Agreements);
(vii) any agreement of indemnification under any End User Agreement that could result in an indemnification payment by the Company or any of its Subsidiaries in excess of two (2) times the value of total payments to the Company or its Subsidiaries under such agreement;
(viii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000 individually or $100,000 in the aggregate;
(ix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(x) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(xi) any purchase order or contract for the purchase of materials involving payments in excess of $10,000 individually or $50,000 in the aggregate;
(xii) any construction contracts;
(xiii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or similar agreement;
(xiv) any agreement, contract or commitment to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xv) any sales representative, allianceoriginal equipment manufacturer, partnershipmanufacturing, joint venturevalue added, joint operating remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company or any of its Subsidiaries;
(xvi) any Contract limiting in any respect the right of the Company or any of its Subsidiaries to engage or participate, or compete with any person, in any line of business, market or geographic area, or to make use of any Intellectual Property, or any Contract granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of first refusal, rights of first negotiation or similar rights or terms to any person, or any Contract otherwise limiting the right of the Company or any of its Subsidiaries to sell, distribute or manufacture any Company Product or to purchase or otherwise obtain any software, components, parts or services;
(xvii) any Contract with any Governmental Entity (a “Government Contract”) or any material federal, state, county, local or foreign governmental consent, license, permit, grant, or other authorization of a Governmental Entity that is required for the operation in all material respects of the Company’s of any of its Subsidiaries’ business;
(xviii) any settlement or litigation “standstill” agreement. The Target Corporation ; or
(xix) other than customer purchase orders arising in the ordinary course of business to the extent that the purchase or sale provided for therein has been performed in full on or prior to the date of this Agreement, any other agreement, contract or commitment that involves payments in excess of $25,000 individually or $100,000 in the aggregate or more and is not cancelable without penalty within 30 days.
(b) True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.17 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Acquiring Corporation Parent. Each Material Contract to which the Company or any of its Subsidiaries is a correct party or any of its properties or assets (whether tangible or intangible) is subject is a valid and complete copy binding agreement of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation Company or its SubsidiariesSubsidiary, as enforceable against the case may be; (B) Company or its Subsidiaries and, to the Knowledge of Target Corporationthe Company, each other party thereto in accordance with its terms, and is in full force and effect with respect to the agreement will continue to be Enforceable against the other parties thereto following the consummation Company or its Subsidiary. The Company and its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received written notice or notice via electronic mail that it has breached, violated or defaulted under, any of the transactions contemplated hereby; (C) neither Target Corporation nor terms or conditions of any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under such Material Contract and, to the terms ofCompany’s Knowledge, any other Contract. To the Company’s Knowledge, no party obligated to the Company pursuant to any such contractMaterial Contract has breached, agreement violated or commitment described in Schedule 2.17defaulted under such Material Contract, or taken any action or failed to act, such that, with the lapse of time, giving of notice or both, such action or failure to act would constitute such a breach, violation or default under such Material Contract by any such other party.
(c) The Company and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Material Contract to have been performed by the Company or such Subsidiary prior to the date hereof, and to the Knowledge of Target Corporationthe Company, no event has occurred 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) To the Knowledge of the Company and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, with respect to any Government Contract, there is, as of the date of this Agreement, no: (i) claim or permit termination, modification, or acceleration, under any such contract, agreement or commitmentrequest by a Governmental Entity for a contract price adjustment; (Dii) to dispute involving the Knowledge Company or any of Target Corporation, no third party is in breach its Subsidiaries; or (iii) claim or equitable adjustment by the Company or any of or in default under its Subsidiaries. Neither the terms Company nor any of its Subsidiaries has any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge material liability for renegotiation of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentGovernment Contracts.
Appears in 1 contract
Sources: Merger Agreement (Altiris Inc)
Agreements, Contracts and Commitments. (a) Except as described set forth in Schedule 2.17SECTION 2.20(a) of the Company Schedule, neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves or may involve aggregate future payments (whether with any officer, director, the Company employee currently earning an annual salary in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation excess of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more member of its Subsidiaries without penalty or payment on 30 days notice or lessthe Company's Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) calendar days' notice without liability or financial obligation to the Company;
(ii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(iii) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business, or ;
(iiiv) any employment material agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which the Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than the Company's subsidiaries;
(vi) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) calendar days or less, or any material agreement pursuant to which the Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) calendar days or less;
(vii) any agreement. The Target Corporation has delivered , contract or commitment currently in force to Acquiring Corporation provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a correct whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) calendar days or less and complete copy substantially in the form previously provided to Parent;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of each written agreement listed in Schedule 2.17 money or extension of credit;
(as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (Bx) to the Knowledge knowledge of Target Corporationthe Company, any material settlement agreement entered into within five (5) years prior to the agreement will continue date of this Agreement which has not yet been fully performed or which contains provisions that restrict or otherwise govern the conduct of business by the Company or any of its subsidiaries; or
(xi) any other agreement, contract or commitment that has a value of $100,000 or more individually or annually.
(b) Neither the Company nor any of its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither the Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be Enforceable against disclosed in the other parties thereto following the consummation of the transactions contemplated hereby; Company Schedule (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; aggregate). The Company has made available to Parent true and (E) to the Knowledge of Target Corporation, no party has repudiated any provision correct copies of any such contract, agreement or commitmentcontracts the Company may have with its top ten customers.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Centennial Technologies Inc)
Agreements, Contracts and Commitments. (a) Seller has not breached, or received in writing any claim or threat that it has breached, any of the terms and conditions of any agreement, contract, or commitment required to be filed as an exhibit to the Seller SEC Reports ("Seller Material Contracts") in such a manner as would permit any other party to cancel or terminate the same or would permit any other party to seek material damages from Seller under any Seller Material Contract. Each Seller Material Contract that has not expired or been terminated is in full force and effect and is not subject to any material default thereunder of which Seller is aware by any party obligated to Seller pursuant to Seller Material Contracts.
(b) Except as described set forth in Schedule 2.17Seller SEC Reports filed prior to the date of this Agreement or as provided for in this Agreement, neither Target Corporation Seller nor any Subsidiary of Target Corporation its Subsidiaries is a party to any oral or is bound by written (i) consulting agreement providing for annual payments by Seller or any written or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessin excess of $100,000, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) agreement with any executive officer or other key employee of Seller or any of its Subsidiaries the benefits of which are contingent or vest, or the terms of which are materially altered, upon the occurrence of a transaction involving Seller or any of its Subsidiaries of the nature contemplated by this Agreement, (iii) agreement with respect to any executive officer or other key employee of Seller or any of its Subsidiaries providing any term of employment agreementor compensation guarantee, non-competition agreement(iv) agreement or plan, including any stock option, stock appreciation right, restricted stock or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement 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, (v) agreement that would restrict Seller's or any Subsidiary's ability to compete in any business in any location, (vi) agreements concerning a partnership or joint venture, (vii) loan or credit agreementagreements, promissory notes, security agreementagreements, indenture, mortgage, pledge deeds of trust and other agreements relating to indebtedness for borrowed money or other instrument evidencing indebtedness deferred purchase price of property (other than equipment purchases or lease agreements entered into trade payables arising in the ordinary course of business), (viii) any agreement relating to business acquisitions or dispositions not yet consummated, including any separate Tax or indemnification agreements, and (ix) any other agreement that would be required to be filed as an exhibit to an Annual Report on Form 10-K of Seller if Seller were to file such a report on the date of this Agreement (assuming for this purpose that the fiscal year covered thereby ended on the date of this Agreement).
(c) All Seller Material Contracts and such other agreements required to be disclosed in Section 3.10 of the Seller Disclosure Schedule are valid and binding and are in full force and effect and enforceable against Seller or its Subsidiaries in accordance with their respective terms, except as to the effect, if any, of (i) applicable bankruptcy or other similar laws affecting the rights of creditors generally, (ii) rules of law governing specific performance, injunctive relief and other equitable remedies and (iii) to the extent applicable, the enforceability of provisions regarding indemnification in connection with the sale or issuance of securities. Neither Seller nor any of its Subsidiaries is in material violation or breach of or default under, or has received notice of any material violation or breach of or default under, any such Seller Material Contracts or other agreements required to be disclosed in Section 3.10 of the Seller Disclosure Schedule. To the Knowledge of Seller, no other party to a Seller Material Contract or any sales representative, alliance, partnership, joint venture, joint operating other agreement required to be disclosed in Section 3.10 of the Seller Disclosure Schedule is in material violation or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy breach of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each or default under any such Seller Material Contract or other such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitment.
Appears in 1 contract
Sources: Merger Agreement (Transport Corporation of America Inc)
Agreements, Contracts and Commitments. Except Section 2.10 of the Seller Disclosure Letter sets forth, as described in Schedule 2.17of the date of this Agreement, neither Target Corporation nor a true and complete list of, and Seller has delivered or made available to Buyer, or will deliver or make available to Buyer prior to the Final Diligence Delivery Date, true and complete copies of (collectively, the “Material Contracts”):
(a) each Contract of the Company or the Company Subsidiary involving aggregate annual payments by or to the Company or the Company Subsidiary, of more than $50,000, other than any Subsidiary Contract set forth on Section 2.8(c), 2.15(b) or 2.16(a) of Target Corporation is a party to or is bound by the Seller Disclosure Letter;
(b) (i) all Contracts pursuant to which any written Indebtedness of the Company or oral contract, agreement or commitment which involves the Company Subsidiary is outstanding or may involve aggregate future payments (whether in payment of a debtbe incurred, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) all Contracts of or by the Company or the Company Subsidiary guaranteeing any employment agreement, non-competition agreement, debt obligations of any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness person (other than equipment purchases the Company or lease agreements entered into in the ordinary course of businessCompany Subsidiary), including the respective aggregate principal amounts outstanding as of the date hereof, and (iii) all Contracts involving any “keep well” arrangements or pursuant to which the Company or the Company Subsidiary has agreed to maintain any sales representativefinancial statement condition of another person;
(c) all Contracts pursuant to which the Company or the Company Subsidiary has agreed not to, allianceor which, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor by this Agreement, could restrict the ability of Buyer, including the Company and the Company Subsidiary, to compete with any Subsidiary of Target Corporation is in breach under any material provision of or is not in default person in any material business or in any geographic area or to engage in any business or other activity, including any restrictions relating to “exclusivity” or any similar requirement in favor of any person other than the Company or the Company Subsidiary or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging;
(d) all Contracts to which the Company or the Company Subsidiary is party granting any license to, or franchise in respect under the terms of, any such contractmaterial right, agreement property or commitment described other asset;
(e) all joint venture, limited liability company, partnership or other similar Contracts (including all amendments thereto) in Schedule 2.17which the Company or the Company Subsidiary holds an interest;
(f) all Contracts with any Governmental Entity;
(g) all Contracts with any Affiliate of the Company or the Company Subsidiary;
(h) all Contracts that provide for employment or consulting arrangements, other than Contracts covered in clause (g); and
(i) all Contracts that provide for any payment or accrual of benefits in connection with a change in control of the Company or the Company Subsidiary, whether in connection with the transactions contemplated by this Agreement or otherwise. Each of the Company and the Company Subsidiary has performed all material obligations required to be performed by it to date under each Material Contract. Each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or the Company Subsidiary, as the case may be, and to the Knowledge knowledge of Target CorporationSeller, no event has occurred the other parties thereto, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect affecting creditors’ rights generally and no condition exists which(ii) general principles of equity. None of the Company, after notice or lapse of time or boththe Company Subsidiary or, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge knowledge of Target CorporationSeller, no third any other party is in breach or violation of or in default under the terms of any such contract(nor, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge knowledge of Target CorporationSeller, no does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Material Contract to which it is a party has repudiated or by which the Company, the Company Subsidiary or any provision of any such contracttheir respective properties or other assets is bound, agreement except for violations or commitmentdefaults that individually or in the aggregate have not had and are not reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation nor any Subsidiary of Target Corporation (a) The Company is not a party to or nor is it bound by by:
(i) any written material employment or oral contractconsulting 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;
(ii) 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 hereby, or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby;
(iii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually in excess of $25,000;
(v) any agreement, contract or commitment which involves containing any covenant limiting the freedom of the Company to engage in any line of business or may involve aggregate to compete with any person;
(vi) any agreement, contract or commitment relating to capital expenditures and involving future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation excess of $100,000 10,000 in any individual case, or more and which is not$25,000 in the aggregate;
(vii) any agreement, by its termscontract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business;
(viii) any mortgages, terminable by Target Corporation indentures, loans or one credit agreements, security agreements or more other agreements or instruments relating to the borrowing of its Subsidiaries without penalty money or payment on 30 days notice or lessextension of credit, other than purchase orders credit for the purchase or sale of goods and/or services entered into by Target Corporation trade payables incurred in the ordinary course of its business;
(ix) any purchase order or contract for the purchase of materials involving in excess of $10,000 in any individual case, or $50,000 in the aggregate;
(iix) any employment construction contracts;
(xi) any distribution, joint marketing or development agreement; or
(xii) any other agreement, non-competition agreement, any loan contract or credit agreement, security agreement, indenture, mortgage, pledge commitment that involves $25,000 or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of more or is not cancelable without penalty within thirty (30) days.
(b) The Company is in default in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any material respect under of the terms ofor conditions of any agreement, any such contract, agreement covenant, instrument, lease, license or commitment described in Schedule 2.17to which the Company is a party or by which it is or may be bound (collectively a "Contract"), and to the Knowledge nor is Seller aware of Target Corporation, no any event has occurred and no condition exists which, after notice or lapse of time or both, that would constitute such a material breach breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by Target Corporation or its Subsidiariesany party obligated to the Company pursuant thereto. The Company has obtained, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) will obtain prior to the Knowledge Closing Date, all necessary consents, waivers and approvals of Target Corporationparties to any Contract as are required thereunder in connection with the transactions contemplated hereby or for such Contracts to remain in effect without modification after the Closing. Following the Closing, no third party is in breach the Company will be permitted to exercise all of or in default the Company's rights under the terms Contracts without the payment of any such contractadditional amounts or consideration other than ongoing fees, agreement royalties or commitment, or permit termination, modification, or acceleration, under payments which the agreement; and (E) Company would otherwise be required to pay had the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmenttransactions contemplated hereby not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in disclosed on Schedule 2.174.18, as of the date of this Agreement, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by:
(a) any employment or consulting agreement, Contract or commitment with any officer, director or employee of Company or any of its subsidiaries (whether on a full-time, part-time or other basis), other than those that are terminable by Company or any of its subsidiaries at will without liability or financial obligation to Company;
(b) any agreement of indemnification or any power of attorney or guaranty other than any standard agreement terms of indemnification entered into in connection with the sale of products or license or maintenance or support of technology in the Ordinary Course of Business;
(c) any agreement, contract or commitment containing any covenant limiting the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person, containing any exclusivity provisions, providing any other party rights regarding the ability to enter into a Third Party Transaction or to receive notice regarding a Third Party Transaction, or relating to the localization of product versions;
(d) any services agreement, other than those that are pursuant to the Company’s standard services agreement (without modification) or those that do not exceed $25,000 or 125 hours of service;
(e) any agreement, contract or commitment relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of assets not in the Ordinary Course of Business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company’s subsidiaries;
(f) any dealer, distributor, joint marketing or development agreement under which Company or any of its subsidiaries have continuing obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any agreement pursuant to which Company or any of its subsidiaries have continuing obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment to license any third party to manufacture or reproduce any Company product, service or technology in any language or version or any agreement, contract or commitment to sell or distribute any Company products, service or technology in any language or version;
(h) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Company or any of its subsidiaries or extension of credit (other than customer accounts receivable owing to Company or any of its subsidiaries in the Ordinary Course of Business or exceeding $20,000 in the aggregate and payable or dischargeable in accordance with customary trade terms);
(i) any written agreement (or oral contract, group of related agreements) for the lease of personal property to or from any person that involves aggregate annual payments of more than $20,000;
(j) any agreement (or commitment which involves or may involve aggregate future payments (whether in payment group of a debt, as a result of a guarantee or indemnification, for goods or services or otherwiserelated agreements) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessraw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $20,000;
(iik) any employment agreementagreement for the purchase of supplies, non-competition agreementcomponents, products or services from single source suppliers, custom manufacturers or subcontractors that involves aggregate annual payments of more than $20,000;
(l) any loan agreement (or credit agreementgroup of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in or under which a security agreementinterest has been imposed on any of its assets, indenture, mortgage, pledge tangible or other instrument evidencing indebtedness intangible;
(m) any agreement with any Company stockholder or any of such stockholder’s Affiliates (other than Company) or with any Affiliate of Company;
(n) any profit sharing, pension plan, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers or employees;
(o) any collective bargaining agreement;
(p) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees;
(q) any agreement under which the consequences of a default or termination could have a Company Material Adverse Effect;
(r) any agreement with any original equipment purchases or lease agreements manufacturer entered into in the ordinary course of business)or performed by Company;
(s) any agreement pursuant to which Company is obligated to provide maintenance, support, subscription, integration services, or training for its products;
(t) any sales representative, alliance, partnership, joint venture, joint operating agreement pursuant to which any of Company’s products are manufactured which involves aggregate annual payments of more than $20,000; and
(u) any other agreement (or similar agreementgroup of related agreements) the performance of which involves consideration in excess of $20,000 or which is expected to continue for more than one (1) year from the date hereof. The Target Corporation Company has delivered to Acquiring Corporation Parent a correct and complete copy of each written agreement required to be listed in Section 4.18 of the Company Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred required to be listed in Schedule 2.17Section 4.18 of the Company Schedule. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiarieslegal, as the case may bevalid, binding, enforceable, and in full force and effect in all respects; (B) neither Company nor, to the Knowledge of Target CorporationCompany’s Knowledge, the agreement will continue to be Enforceable against the any other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation party is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17default, and to the Knowledge of Target Corporation, no event has occurred and no condition exists whichoccurred, after which with notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitmentdefault, or permit termination, modification, or acceleration, under the agreement; and (EC) to the Knowledge of Target Corporation, no party has repudiated any provision of the agreement; (D) there are no disputes, oral agreements or forbearance programs in effect; and (E) Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to any of Company or its subsidiaries of more $20,000 in cash or in terms of dedicated resources exceeding revenue attributable to such contract, agreement or commitmentagreement.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17As of the date of this ------------------------------------- Agreement, neither Target Corporation nor any Subsidiary of Target Corporation the Company is not a party to or nor is it bound by by:
(i) any written collective bargaining agreements,
(ii) any agreements or oral contractarrangements that contain any severance pay or similar post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement with a firm or other organization,
(v) any agreement or commitment plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which involves will be increased, or may involve aggregate future the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property involving annual payments by the Company in any individual case in excess of $50,000,
(whether viii) other than pursuant to the Company's standard end-user license agreement (which is attached to the disclosure schedule), any agreement pursuant to which the Company is obligated to provide indemnification or guaranty the indebtedness or liabilities of third parties,
(ix) any agreement containing any covenant limiting the freedom of the Company to engage in payment any line of a debtbusiness or to compete with any person,
(x) any agreement relating to capital expenditures and involving payments required to be made by the Company after the date of this Agreement in excess of $100,000,
(xi) any agreement relating to the disposition or acquisition by the Company after the date of this Agreement of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, as a result indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of a guarantee money by or indemnification, for goods or services or otherwise) extension of credit by or to Target Corporation the Company, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials (not including in-license of technology) involving $50,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement which cannot be canceled without penalty upon notice of sixty (60) days or less,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code, or
(xvii) any other agreement that involves payments by the Company of $100,000 or more and which more; or
(xviii) any other agreement that is not, by its terms, terminable by Target Corporation or one not cancelable without penalty of $25,000 or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or within thirty (ii30) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentdays.
Appears in 1 contract
Sources: Merger Agreement (Critical Path Inc)
Agreements, Contracts and Commitments. (a) Except as described in ------------------------------------- Disclosure Schedule 2.17Section 2.14, neither Target Corporation nor any Subsidiary of Target Corporation the Company does not have continuing obligations under, is not a party to or nor is it bound by by:
(i) any written material employment or oral contractconsulting 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;
(ii) any agreement or plan, 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;
(iii) any lease of personal property having annual lease payments individually in excess of $50,000;
(iv) any agreement, contract or commitment which involves containing any covenant limiting the freedom of the Company to engage in any line of its current business or may involve aggregate to compete with any Person;
(v) any agreement, contract or commitment relating to capital expenditures and involving future payments (whether individually or in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation the aggregate in excess of $100,000 50,000;
(vi) any agreement, contract or more and which is not, by its terms, terminable by Target Corporation commitment relating to the disposition or one acquisition of material assets or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation any interest in any business enterprise outside the ordinary course of the Company's business;
(vii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(viii) any purchase order or contract for the purchase of raw materials involving $50,000 or more;
(ix) any material distribution, joint marketing or development agreement;
(x) any agreement, contract, commitment or loan to or with any of the Company's shareholders, officers, directors, Affiliates, Associates, employees or any Person who is an Affiliate or Associate of any such shareholder, officer or director; or
(xi) any other agreement, contract or commitment (1) that involves $50,000 or more (payable or receivable) or (2) which cannot be cancelled by the Company without penalty upon not less than 30 days' written notice or (3) which is material to the business, financial condition, assets, properties, Liabilities, results of operations or prospects of the Company.
(b) Accurate and complete copies (together with all ancillary documents thereto, including any amendments, consents for alterations and documents regarding variations) of the items set forth in Disclosure Schedule Section 2.14 in response to Section 2.14(a) (collectively, the "COMMITMENTS") have been delivered to the Purchaser. Except as set forth in Disclosure Schedule Section 2.14, with respect to each Commitment: (i) each is a valid and binding obligation of the parties thereto (except as the enforceability thereof may be limited by principles of public policy and subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and to rules of law governing specific performance, injunctive relief or other equitable remedies) and in full force and effect, (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into the Company is not in material default in the ordinary course performance of business)any of its obligations thereunder or in the payment of any principal of or interest on any indebtedness for borrowed money, or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (Biii) to the Knowledge knowledge of Target Corporationeither the Selling Shareholder or the Company, no material default has occurred which (whether with or without notice, lapse of time, or both, or the agreement will continue to be Enforceable against happening or the occurrence of any other parties thereto following the event) would constitute an event of default thereunder or a breach thereunder, (iv) upon consummation of the transactions contemplated hereby; (C) neither Target Corporation nor by this Agreement and the Related Agreements, without providing notice to or obtaining approval, consent or waiver from any Subsidiary of Target Corporation is Person, each will continue in breach under any full force and effect without material provision of penalty or is not in default in any other material respect under the terms of, any adverse consequence and shall be unaffected by such contract, agreement or commitment described in Schedule 2.17transactions, and to (v) no Commitment has been materially amended or otherwise affected by any writing signed by the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentparties thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17the Exhibits to the Company SEC Reports filed prior to the date of this Agreement or on Section 6.19 of the Company Disclosure Schedule, neither Target Corporation the Company nor any Subsidiary of Target Corporation its Subsidiaries is a party to to, nor are their properties or is assets bound by by, any Material Contract. For purposes of this Agreement, “Material Contract” means:
(i) any written or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or collective bargaining agreements;
(ii) any employment severance, bonus or employee retention agreement, non-competition contract, plan or binding commitment;
(iii) any employment or consulting agreement, contract or binding commitment providing for future compensation or payments in excess of $75,000 in any loan year not terminable by the Company or credit agreementits Subsidiaries on thirty (30) days’ notice without liability, security agreement, indenture, mortgage, pledge except to the extent general principles of wrongful termination or other instrument evidencing indebtedness employment law may limit the Company’s or Subsidiary’s ability to terminate Employees at will;
(other than equipment purchases iv) any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course of business with any party in excess of $50,000 individually or in the aggregate, and any agreement of indemnification or guaranty between the Company or its Subsidiaries and any of their officers, directors or Employees, irrespective of the amount of such agreement or guaranty;
(v) any agreement, contract or binding commitment, with the exception of the Educational Approvals, containing any covenant directly or indirectly limiting the freedom of the Company or its Subsidiaries to engage in any line of business), compete with any person, or sell any sales representativeproduct, allianceor which, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the Merger, would so limit Buyer or the Surviving Company;
(vi) any agreement, contract or binding commitment relating to the disposition or acquisition of material assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(vii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit (other than extensions of credit in the ordinary course of business from vendors);
(viii) any Leases;
(ix) other than in connection with the Merger and other transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms ofby this Agreement, any such contractother agreement, agreement contract or binding commitment described which involves payment by the Company or its Subsidiaries of $75,000 or more in Schedule 2.17, and the aggregate which cannot be terminated on thirty (30) days’ notice without cost or expense to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation Company or its Subsidiaries;
(x) any agreement, contract or binding commitment defining the rights of the security (debt or equity) holders of the Company or any of its Subsidiaries;
(xi) any agreement, contract or binding commitment to which the Company or any of its Subsidiaries is a party or to which it is bound relating to the voting of any shares of the capital stock of the Company, or permit terminationthe capital stock or other securities of any of its Subsidiaries;
(xii) any agreement, modificationcontract or binding commitment to register the Company’s securities; or
(xiii) any other agreements, contracts or acceleration, under any such contract, agreement or commitment; (D) binding commitments which are material to the Knowledge Company or any of Target Corporation, no third party is in breach its Subsidiaries or the operation of their respective businesses. The Company has provided or in default under the terms made available to Buyer true and correct copies of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) all Material Contracts as amended to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentdate.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as described set forth in Schedule 2.17Section 2.14 of the Disclosure Schedule, neither Target Corporation nor any Subsidiary of Target Corporation the Company is not a party to or to, nor is bound by any of or any commitment to enter into any of the following Contracts (each, a “Material Contract”):
(i) any written vendor or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment supply Contract involving expenditures of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) greater than $150,000 per year by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders the Company for the purchase or sale of goods and/or services or services;
(ii) any employment, contractor or consulting Contract with an employee or consultant, contractor or salesperson that would reasonably be expected to result in payment in excess of $150,000 in any year, whether or not such service provider is terminable by the Company at will and without penalty;
(iii) any agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement (including any severance or change of control agreements);
(iv) (A) any lease of personal property or equipment requiring payments of greater than $50,000 per year and (B) any real property lease;
(v) any Contract relating to capital expenditures and involving future payments in excess of $20,000 individually or $50,000 in the aggregate;
(vi) any Contract relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the business of the Company;
(vii) any mortgages, indentures, guaranties, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(viii) any Contract containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, non-solicitation, “most favored nations,” restriction on the operation or scope of its business or operations, or similar terms;
(ix) any in-bound licenses, out-bound licenses and cross-licenses, and any other contracts granting any other right, title or interest, with respect to material Intellectual Property Rights (whether the Company is (1) grantor or (2) grantee), but excluding (A) non-disclosure agreements that do not disclose any material confidential information and contain only ordinary course confidentiality obligations, (B) standard non-exclusive end user licenses and other standard non-exclusive customer agreements entered into by Target Corporation the Company in the ordinary course of business, or (ii) any employment agreementbusiness by which the Company licenses generally commercially available, non-competition agreementcustomized Shrink-Wrap Code having a total acquisition cost, in the aggregate for all use by the Company of less than $100,000 for all use thereof of the Company;
(x) any loan joint venture, partnership, stockholder, voting trust or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness similar Contracts (other than equipment purchases the Voting Agreement);
(xi) any Contract containing change of control provisions relating to the Company;
(xii) any Contract requiring the Company to indemnify or lease agreements entered into hold harmless any person in respect of which the ordinary course potential obligation could be material to the Company;
(xiii) any Contract that would prevent, materially delay or materially impede the Company’s ability to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement;
(xiv) any other Contract not identified in clauses (i) through (xiii) above with any of business)its officers, directors, employees, Affiliates or stockholders (or any sales representativeAffiliates of any of the foregoing);
(xv) any other Contract not identified in clauses (i) through (xiv) above that involves $150,000 or more and is not cancelable by the Company without penalty within ninety (90) days; or
(xvi) any other Contract not identified in clauses (i) through (xv) above with a duration or term of one year or more and is not cancelable by the Company without penalty.
(b) The Company has made available to Parent true, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy copies of all Material Contracts, including each amendment, supplement or modification thereto, as in effect on the date hereof. The Company is in compliance in all material respects with, and has not materially breached, violated or defaulted under, or received written agreement listed in Schedule 2.17 notice (as amended or to datethe Company’s Knowledge, other notice) and a written summary setting forth that it has materially breached, violated or defaulted under, any of the terms and or conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) any Material Contract, nor does the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Company have any Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, that would constitute such a material breach breach, violation or default by Target Corporation with the lapse of time, giving of notice or its Subsidiariesboth, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) nor to the Knowledge of Target Corporationthe Company is any party obligated to the Company pursuant to any such Material Contract subject to any default thereunder. None of the parties to any Material Contract has terminated or given written notice (or to the Company’s Knowledge, no third party is in breach other notice) of or in default under termination to the terms Company of any such contract, agreement Material Contract or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision written notice of any such contractparty’s intention not to use the Company’s services or to provide services to the Company under any of the Material Contracts. Each Material Contract is valid and binding and in full force and effect except to the extent that the same may be subject to the Laws of general application relating to bankruptcy, agreement insolvency, reorganization and the relief of debtors and rules of Law governing specific performance, injunctive relief, or commitmentother equitable remedies.
Appears in 1 contract
Sources: Merger Agreement (Chicos Fas Inc)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Summit nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Summit's Board of Directors, other than those that are terminable by Summit or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Summit's or any of its subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than: (i) any written agreement of indemnification or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty entered into in the ordinary course of business), (ii) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, (iii) any agreement of indemnification entered into in connection with services performed in the ordinary course of business, and (iv) any indemnification agreement between Summit or any sales representativeof its subsidiaries and any of their respective officers, alliancedirectors or employees; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Summit or any of its subsidiaries to engage in any line of business which is material to Summit and its subsidiaries taken as a whole or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Summit or any of its subsidiaries or subsequent parent or sister companies after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Summit has any material ownership interest in any corporation, partnership, joint venture, joint operating venture or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may beother business enterprise; (Bf) any joint marketing or development agreement currently in force under which Summit or any of its subsidiaries have continuing material obligations to the Knowledge jointly market any product, technology or service and which may not be canceled without penalty upon notice of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of 90 days or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiariesless, or permit terminationany agreement pursuant to which Summit or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of whole or in default under the terms part, by Summit or any of any such contract, agreement its subsidiaries and which may not be canceled without penalty upon notice of 90 days or commitment, or permit termination, modification, or acceleration, under the agreementless; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitment.29
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Summit Design Inc)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17set forth on Section 3.16 to the Disclosure Schedules, neither Target Corporation nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debtTarget's Board of Directors, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, other than those that are terminable by Target Corporation or one or more any of its Subsidiaries subsidiaries on no more than thirty (30) days' notice without penalty liability or payment financial obligation to Target;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on 30 days notice the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or less, any guaranty other than purchase orders for the purchase or sale any agreement of goods and/or services indemnification entered into by Target Corporation in connection with the sale or license of computer or communications hardware products in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Target or any of its subsidiaries to engage in any line of business, conduct business in any geographical area or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Target has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Target's subsidiaries;
(f) any dealer, distributor, joint operating marketing or similar agreement. The development agreement currently in force under which Target Corporation has delivered or any of its subsidiaries have continuing material obligations to Acquiring Corporation a correct jointly market any product, technology or service and complete copy which may not be canceled without penalty upon notice of each written agreement listed in Schedule 2.17 ninety (as amended to date90) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation days or its Subsidiariesless, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under or any material provision agreement pursuant to which Target or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or is in part, by Target or any of its subsidiaries and which may not in default in be canceled without penalty upon notice of ninety (90) days or less;
(g) any material respect under the terms ofagreement, any such contract, agreement contract or commitment described currently in Schedule 2.17, and force to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under provide source code to any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party for any product or technology that is material to Target and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in breach force to license any third party to manufacture or reproduce any Target product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Target products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) form previously provided to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitment.Parent;
Appears in 1 contract
Sources: Merger Agreement (Avocent Corp)
Agreements, Contracts and Commitments. Except (a) Section 2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as described in Schedule 2.17of the date of this Agreement (each, neither Target Corporation nor any Subsidiary of Target Corporation is a party to or is bound by “Company Material Contract” and collectively, the “Company Material Contracts”): (i) any written or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessCompany Contract, other than purchase orders for a Company Employee Plan, requiring payments by the purchase or sale Company after the date of goods and/or services entered into by Target Corporation this Agreement in excess of $125,000 per year pursuant to its express terms relating to the ordinary course of businessemployment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment-related, consulting or independent contractor services, not terminable by the Company on 90 calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law may limit the Company’s ability to terminate employees at will; (ii) a Company Contract, other than the Company Employee Plans or the Company Stock Plan, relating to any employment agreementagreement or plan, non-competition agreementincluding any stock option plan, stock appreciation right plan or stock purchase plan, any loan of the benefits of which will be increased, or credit agreementthe vesting of benefits of which will be accelerated, security agreementby the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, indenturesuch as termination of employment), mortgage, pledge or other instrument evidencing indebtedness the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions; 20 Exhibit 2.1 (other than equipment purchases iii) a Company Contract relating to any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course Ordinary Course of business)Business; (iv) a Company Contract containing (A) any covenant limiting the freedom of the Company or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any most-favored pricing arrangement, (C) any exclusivity provision, or (D) any sales representativenon-solicitation provision with respect to employees; (v) a Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $250,000 pursuant to its express terms and not cancelable without penalty; (vi) a Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity since the Company’s incorporation; (vii) a Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company; (viii) a Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company; (C) any dealer, distributor, joint marketing, alliance, partnership, joint venture, joint operating cooperation, development or similar agreement. The Target Corporation other agreement currently in force under which the Company has delivered continuing obligations to Acquiring Corporation develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business; (ix) a correct Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions; (x) a Company Real Estate Lease; or (xi) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company, and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) which involves payment or receipt by the agreement is Enforceable against Target Corporation Company after the date of this Agreement under any such agreement, contract or its Subsidiariescommitment of more than $250,000 in the aggregate, as or obligations after the case may be; date of this Agreement in excess of $250,000 in the aggregate, or (B) that is material to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation business or operations of the transactions contemplated hereby; Company. 21 Exhibit 2.1
(Cb) neither Target Corporation nor any Subsidiary The Company has made available to Apricus accurate and complete copies of Target Corporation is all Company Material Contracts, including all amendments thereto. Except as set forth in breach under any material provision Section 2.13(b) of or is the Company Disclosure Schedule, there are no Company Material Contracts that are not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17written form. The Company has not, and to the Knowledge Company’s Knowledge, as of Target Corporationthe date of this Agreement no other party to a Company Material Contract has, no event has occurred and no condition exists whichbreached, after notice violated or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiariesdefaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Company Material Contract in such manner as would permit termination, modificationany other party to cancel or terminate any such Company Material Contract, or acceleration, under would permit any such contract, agreement or commitment; (D) other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Knowledge Company, as of Target Corporationthe date of this Agreement, no third party each Company Material Contract is valid, binding, enforceable and in breach of full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or in default under has a right pursuant to the terms of any such contractCompany Material Contract to change, agreement any material amount paid or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) payable to the Knowledge of Target Corporation, no party has repudiated Company under any Company Material Contract or any other material term or provision of any such contract, agreement or commitmentCompany Material Contract.
Appears in 1 contract
Sources: Merger Agreement
Agreements, Contracts and Commitments. (a) Except as described for Contracts specifically identified in Section 3.11(a) of the Disclosure Schedule 2.17(referring to the appropriate sub-section of this Section), neither Target Corporation nor any Subsidiary no member of Target Corporation the Company Group is a party to or to, nor is it bound by any of the following (each, a “Material Contract”):
(i) management, employment, severance, consulting, relocation, repatriation, expatriation, or any other Contract providing for compensation or benefits to current employees (each, an “Employment Agreement”), and Contracts with individual service providers, in each case which are not cancelable by the member of the Company Group party to such Contracts on notice of 60 days or less without penalty or further payment or which include payments of a base salary that is in excess of $150,000 per annum;
(ii) Company Employee Plan;
(iii) Contract pursuant to which any benefits thereunder will be increased, or the vesting thereunder of such benefits will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, or the value of which benefits thereunder will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iv) lease or sublease of personal or real property having a value in excess of $200,000 individually or $350,000 in the aggregate, per annum;
(v) Contract of indemnification or guaranty, other than any Contract of indemnification entered into in connection with the sale or license or manufacturing of products or services in the ordinary course of business or indemnification of any officers and directors of any Company Member, consistent with past practice;
(vi) Contract relating to capital expenditures (within the meaning of GAAP) and involving future payments in connection with such expenditures to or from any member of the Company Group in excess of $250,000 individually or $500,000 in the aggregate;
(vii) Contract that has a term of more than one year and that may not be terminated by the Company Group without penalty within 60 days after the delivery of a termination notice, except for confidentiality or nondisclosure agreement entered into by any member of the Company Group in the ordinary course of business consistent with past practice;
(viii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contract relating to the borrowing of money or extension of credit, in excess of $100,000 individually or in the aggregate, and other than trade payables incurred and extensions of credit to customers granted in the ordinary course of business consistent with past practice;
(ix) research and/or development Contracts under which any member of the Company Group has continuing obligations to jointly research and/or develop any material Intellectual Property;
(x) Contract for a joint venture, partnership or similar arrangement;
(xi) Material Company IP Agreement;
(xii) any Contract required to be referred to under Section 3.7 hereof;
(xiii) Contract with any shareholder or affiliate of any member of the Company Group, other than an Employment Agreement;
(xiv) stockholder agreements, voting agreements, buy-sell agreements and other Contracts granting any Person any rights to exercise control over any member of the Company Group, or the capital stock of any member of the Company Group, and all such Contracts to which although no member of the Company Group is a party or otherwise bound, the existence of which is the Company has Knowledge of;
(xv) Contract granting a Lien upon any material asset of any member of the Company Group;
(xvi) Contracts with each of the customers, distributors or resellers that were the five largest costumers, distributors or resellers of the Company Group in 2005 in terms of the amount of revenues in each of the Company Group’s product lines (each, a “Material Customer”);
(xvii) Contracts with each of the suppliers that were either the five largest suppliers of the Company Group in 2005 in terms of the total value of goods and services purchased by the Company Group, or that are sole suppliers for material goods and services required for the conduct of the business in each of the Company Group’s product lines (each, a “Material Supplier”).
(xviii) Contract for the (i) disposition or acquisition of any material asset (other than licenses in the ordinary course of business consistent with past practice), (ii) for the grant of any preferential rights to purchase any material asset, (iii) for the grant of any exclusive right to use any material asset, or (iv) requiring the consent of any party to the transfer of any material asset;
(xix) Material Contract with any Governmental Authority; and
(xx) Material currency exchange, interest rate exchange, commodity exchange or similar Contract.
(b) All Material Contracts are valid, binding and in full force and effect and to the Company’s Knowledge, are enforceable against the applicable member of the Company Group party to such Material Contracts and, to the knowledge of the Company, the other party thereto, in accordance with their terms. Each member of the Company Group has performed and is in compliance with all material obligations required to be performed by it or complied with to date under the Material Contracts, except as disclosed in Section 3.8(b) of the Disclosure Schedule. Other than as listed in Section 3.11(b) of the Disclosure Schedule, to the Company’s Knowledge, there exists no default or event of default or event, occurrence, condition or act, which, with the giving of notice, the lapse of time or the happening of any other event or condition, would (i) become a default or event of default under any Material Contract or (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of any obligation of the Company or any of its Subsidiaries under any Material Contract, or (D) the right to cancel, terminate or modify any Material Contract, which has resulted in the last 12 months, or is reasonably likely to result, in a material impact on any of the Company Group’s product lines. To the Company’s Knowledge, no member of the Company Group has received any written notice regarding any material violation or oral contractmaterial breach of, agreement material default under, or commitment intention to cancel or modify any Material Contract, which involves has resulted in the last 12 months, or may involve aggregate future payments (whether is reasonably likely to result, in a material impact on any of the Company Group’s product lines. Following the Closing, the Company will be permitted to exercise all of its rights under the Material Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay pursuant to the terms of such Material Contracts had the transactions contemplated by this Agreement not occurred. Complete and correct copies of all Material Contracts have been made available to the Investors by the Company.
(c) Section 3.11(c) of the Disclosure Schedule sets forth all Material Contracts with change-in-control or other similar provisions which would, or would reasonably be expected to, void such Contract or to cause the termination thereof, a debtbreach, violation or default thereunder or any other change, acceleration, triggering of rights or modification to the terms thereof, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentthis Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Lumenis LTD)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17the SpeedFam Schedules, neither Target Corporation SpeedFam nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result SpeedFam's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by SpeedFam or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit SpeedFam's or any of its subsidiaries' ability to terminate employees at will;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, any loan agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business), business including any indemnification agreements between SpeedFam or any sales representativeof its subsidiaries and any of its officers or directors;
(d) any agreement, alliancecontract or commitment containing any covenant limiting the freedom of SpeedFam or any of its subsidiaries to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint ventureventure or other business enterprise;
(f) any material joint marketing or development agreement; or
(g) any material agreement relating to the sale or purchase of any business or business assets providing for payment of any deferred or contingent consideration by SpeedFam or providing for indemnification by SpeedFam. Neither SpeedFam nor any of its subsidiaries, joint operating or similar agreement. The Target Corporation has delivered nor to Acquiring Corporation SpeedFam's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 SpeedFam Contract (as amended to date) and a written summary setting forth defined below), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which SpeedFam or any of its subsidiaries is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (g) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "SpeedFam Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such SpeedFam Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentbe material to SpeedFam.
Appears in 1 contract
Sources: Merger Agreement (Integrated Process Equipment Corp)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves or may involve aggregate future payments (whether with any officer, director, Company employee currently earning an annual salary in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation excess of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more member of its Subsidiaries without penalty or payment on 30 days notice or lessCompany's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business, or ;
(iid) any employment material agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(f) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or
(k) any other agreement, contract or commitment that has a value of $500,000 or more individually. The Target Corporation has delivered Neither Company nor any of its subsidiaries, nor to Acquiring Corporation Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule 2.17. With respect to each (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Forte Software Inc \De\)
Agreements, Contracts and Commitments. Except As of the date hereof, except as described provided in Parent Schedule 2.173.16, neither Target Corporation Parent nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written employment or oral consulting agreement, contract or commitment with any officer or director or member of Parent's Board of Directors, other than those that are terminable by Parent or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Parent, (ii) any such agreement, contract or commitment with any employee, consultant, stockholder or other person that will result in any obligation of Parent or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or stockholder of Parent pursuant to which Parent has loaned or is obligated to loan any money thereto or (iv) any arrangement or agreement providing for severance or termination pay;
(b) any agreement or plan, including, without limitation, any stock option plan, warrant agreement, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification of officers, directors or employees of Parent, except as provided for in Parent's Articles of Incorporation or Bylaws, or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Parent;
(d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Parent or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Parent's distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Parent or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Parent's subsidiaries;
(f) any contract, agreement or commitment containing exclusivity provisions pursuant to which involves or may involve aggregate future payments Parent has agreed not to purchase the goods (whether in payment of a debt, as a result of a guarantee or indemnification, for goods other than local grocery products) or services of, or otherwiseenter into a commercial relationship with, another person;
(g) by any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to Target Corporation the borrowing of money or extension of credit;
(h) any settlement agreement relating to any claim or suit;
(i) any real property lease covering more than 25,000 square feet; or
(j) any other agreement, lease, contract or commitment that involves remaining obligations of Parent of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more individually. Neither Parent nor any of its Subsidiaries without penalty subsidiaries, nor to Parent's knowledge any other party to a Parent Contract (as defined below), is in breach, violation or payment on 30 days default under, and neither Parent nor any of its subsidiaries has received written notice that it has breached, violated or lessdefaulted under, other than purchase orders for any of the purchase terms or sale conditions of goods and/or services entered into any of the agreements, contracts or commitments to which Parent or any of its subsidiaries is a party or by Target Corporation which it is bound that are required to be disclosed in the ordinary course of business, or Parent Schedules (ii) any employment such agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "PARENT CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Parent Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Eagle Wireless International Inc)
Agreements, Contracts and Commitments. Except as described disclosed in Schedule 2.17Section 2.19 of the Company Schedule, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by:
(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale, license, distribution and development of software products and advertising in the Ordinary Course of Business;
(d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the Ordinary Course of Business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;
(f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(i) any written mortgages, indentures, guarantees, loans or oral contractcredit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or granting any Lien on any assets or properties of the Company or any of its subsidiaries;
(j) any settlement agreement entered into within five (5) years prior to the date of this Agreement;
(k) any other agreement, contract or commitment that has a value of $25,000 or more individually;
(l) any agreement (or group of related agreements) for the lease of personal property to or from any person that involves aggregate annual payments of more than $25,000;
(m) any agreement under which involves or may involve aggregate future payments (whether in payment the consequences of a debt, as default or termination could reasonably be anticipated to have a result Material Adverse Effect on the Company;
(n) any agreement (or group of a guarantee or indemnification, for goods or services or otherwiserelated agreements) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businesscommodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $25,000;
(iio) any employment agreementagreement for the purchase of supplies, non-competition agreementcomponents, products or services from single source suppliers, custom manufacturers or subcontractors that involves aggregate annual payments of more than $25,000;
(p) any loan agreement concerning a partnership or credit agreement, security agreement, indenture, mortgage, pledge joint venture;
(q) any agreement with any Company stockholder or other instrument evidencing indebtedness any of such Company stockholder's Affiliates (other than equipment purchases the Company) or lease agreements entered into in with any Affiliate of the ordinary course of business)Company;
(r) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers or employees;
(s) any sales representativecollective bargaining agreement;
(t) any executory agreement under which the Company has advanced or loaned any amount to any of its directors, allianceofficers, partnershipand employees;
(u) any advertising services, joint venturee-commerce or other agreement involving the promotion of products and services of third parties by the Company;
(v) any executory agreement pursuant to which the Company is obligated to provide maintenance, joint operating support or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy training for its services or products;
(w) any revenue or profit participation agreement which involves aggregate annual payments of each written agreement listed in Schedule 2.17 more than $25,000; and
(as amended to datex) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contractlicense, agreement or commitment described other permission which the Company or any Affiliate of the Company has granted to any third party with respect to any of the Intellectual Property used in Schedule 2.17the Company's business. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under Company Schedule (any such contractagreement, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Merger Agreement (Realnetworks Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17the Company Schedules, neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries has, nor is it a party to or nor is it bound by by:
(ia) any written collective bargaining agreements,
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessretirement plans, or any other employee benefit plans or arrangements,
(iic) any employment or consulting agreement, non-competition agreementcontract or commitment with any officer or director level employee, not terminable by the Company on thirty (30) days notice without liability, except to the extent general principles of wrongful termination law may limit the Company's ability to terminate employees at will,
(d) any agreement or plan, including, without limitation, any loan stock option plan, stock appreciation right plan or credit agreementstock purchase plan, security agreementany of the benefits of which will be increased, indentureor the vesting of benefits of which will be accelerated, mortgage, pledge by the occurrence of any of the transactions contemplated by this Agreement or other instrument evidencing indebtedness the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(other than equipment purchases e) any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course of business)business other than such agreements or guarantees between the Company and any of its subsidiaries, officers or directors,
(f) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or compete with any person,
(g) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $200,000,
(h) any agreement, contract or commitment relating to the disposition or acquisition of assets not in the ordinary course of business or any sales representative, allianceownership interest in any corporation, partnership, joint ventureventure or other business enterprise,
(i) any mortgages, joint operating indentures, loans or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation credit agreements, security agreements or its Subsidiaries, as the case may be; (B) other agreements or instruments relating to the Knowledge borrowing of Target Corporationmoney or extension of credit,
(j) any joint marketing or development agreement (excluding agreements with resellers, value added resellers or independent software vendors entered into in the ordinary course of business that do not permit such resellers or vendors to modify the Company's software products),
(k) any distribution agreement will continue to be Enforceable against (identifying any that contain exclusivity provisions),
(l) any lease of real property involving the other parties thereto following payment by the consummation Company of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of $250,000 per year or is not in default more in any material respect under the terms of, individual case,
(m) any such contract, agreement or commitment described with any affiliate of the Company, or
(n) any other agreement, contract or commitment (including personal property leases) which involves payment by the Company of $250,000 or more and is not cancelable without penalty within thirty (30) days or (other than agreements for the provision by the Company of services entered into in Schedule 2.17, and the ordinary course of its business) that involves payment to the Knowledge Company of Target Corporation, no event has occurred and no condition exists which, after notice $250,000 or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under more in any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentindividual case.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in contemplated by this Agreement or as set forth on Schedule 2.173.11, neither Target Corporation Almo nor any Subsidiary of Target Corporation the Sellers currently has or is a party to to, or is bound by with respect to any Acquired Asset or Key Employee (ias defined in Section 3.4(i) hereof):
(a) any written collective bargaining agreements;
(b) any agreements or oral arrangements that contain any severance pay or post-employment liabilities or obligations;
(c) any stock option, stock purchase, stock appreciation, bonus, deferred compensation, pension, severance, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(d) any agreement, contract, agreement or commitment which involves relating to the disposition or may involve aggregate future payments (whether acquisition of assets or any interest in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation any business enterprise except in the ordinary course of business, or ;
(iie) any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement, non-competition agreement, ;
(f) any loan agreement (or credit agreement, security agreement, indenture, mortgage, pledge group of related agreements) for the lease of personal property to or other instrument evidencing indebtedness from any person or entity having a value individually in excess of $10,000;
(other g) any agreement of indemnification or guaranty;
(h) any agreement entered otherwise than equipment purchases or lease agreements entered into in the ordinary course of business;
(i) to Almo and the Sellers' knowledge, any agreement that is likely to result in a loss in excess of $25,000 on completion of performance;
(j) any agreement (or group of related agreements) containing any covenant limiting the freedom of Almo or the Sellers to engage in any line of business or to compete with any person or entity that could reasonably be expected to impair or encumber the Acquired Assets (including, without limitation, any restrictions on the marketing, license, and distribution of the Seller Registered Intellectual Property);
(k) any agreement (or group of related agreements) relating to capital expenditures and involving future payments in excess of $15,000;
(l) any agreement (or group of related agreements) under which payment in excess of $1,000 has already been received by Almo or the Sellers (whether in whole or in part) but which requires the performance of services after the Closing Date, except for credit balances included in Schedule 1.2(b);
(m) any fidelity or surety bond or completion bond;
(n) any agreement pursuant to which Almo or the Sellers have advanced or loaned any amount to any director, officer, employee, or consultant other than business travel advances in the ordinary course of business;
(o) any sales representativemortgages, allianceindentures, partnershiploans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Almo or the Sellers or extension of credit to Almo or the Sellers exclusive of routine trade payables, involving obligations in excess of $5,000 or under which Almo or the Sellers have imposed any lien on any of the Acquired Assets;
(p) any purchase order or contract for the purchase of materials (excluding capital expenditures) involving $15,000 or more;
(q) any agreement concerning confidentiality, except in the ordinary course;
(r) any construction contracts;
(s) any distribution, joint venturemarketing, development, or partnership or joint operating venture agreement;
(t) any agreement pursuant to which Almo or similar the Sellers has granted, or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code; or
(u) any other agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement lease, or commitment described in Schedule 2.17license (or series of related agreements, contracts, leases, and to the Knowledge licenses) that involves payment of Target Corporation, no event has occurred and no condition exists which, after notice $10,000 or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentmore.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17(a) As of the date hereof, neither Target Corporation the Company nor any Subsidiary of Target Corporation its Subsidiaries is a party to or is bound by by:
(i) any written or oral contract, employment agreement or commitment employment contract with any director, officer, employee or consultant, other than those that are terminable at-will by the Company or any of its Subsidiaries on no more than thirty (30) days' notice without contractual liability or financial obligation, other than any such agreement or contract pursuant to which involves the Company and its Subsidiaries have contractual liability not in excess of $125,000;
(ii) any agreement of indemnification or may involve aggregate future payments any guaranty outside the ordinary course of the Company's business;
(whether iii) other than Commercial Affiliate Agreements, any agreement or contract involving express minimum revenues stated in payment of a debt, any such agreement or contract as amended to date to the Company and its Subsidiaries taken as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation whole in excess of $100,000 500,000 in any one year period in the future. Section 2.14(a)(iii) of the Company Disclosure Letter sets forth any such agreements or more contracts of the Company or any of its Subsidiaries and which is notidentifies each one which, by its terms, has terms that will be modified or adjusted, or which, by its terms, will become terminable by Target Corporation the other party thereto, in each case as a result of the execution of this Agreement or the Voting Agreements or the consummation of the Merger;
(iv) any agreement or contract containing any covenant limiting in any respect the right of the Company or any of its Subsidiaries (i) to engage in any line of business, (ii) to develop, market or distribute products or services, or (iii) to compete with any person, or granting any exclusive distribution rights;
(v) any lease for (A) real property in which the amount of payments which the Company or any of its Subsidiaries is required to make on an annual basis exceeds $100,000 or (B) personal property in which the amount of payments which the Company or any of its Subsidiaries is required to make on an annual basis exceeds $150,000;
(vi) other than Commercial Affiliate Agreements, any agreement or contract pursuant to the express terms of which the Company or any of its Subsidiaries is currently obligated to pay excess of $500,000 in any one year period in the future which is not terminable by the Company or more of its Subsidiaries without penalty or payment on 30 in excess of $500,000 upon notice of thirty (30) days notice or less;
(vii) any agreement, other than purchase orders for contract or commitment currently in force relating to the purchase disposition or sale acquisition by the Company or any of goods and/or services entered into by Target Corporation its Subsidiaries after the date hereof of a material amount of assets not in the ordinary course of businessbusiness or pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's Subsidiaries;
(iiviii) any employment agreement, non-competition contract or commitment currently in force to license or provide source code to any third party for any product or technology;
(ix) any agreement, lease, plan, arrangement or other contract currently required to be filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Securities Act other than those currently on file with the SEC (including any amendments to agreements filed as of the date of the Company's Form 10-Q for the quarter ended March 31, 2003 that are required to be filed); or
(x) any "standstill" or similar agreement with respect to any equity securities of the Company.
(b) Set forth in Section 2.14(b) of the Company Disclosure Letter is a list of the top twenty (20) Commercial Affiliate Agreements (as measured based on revenues that were earned by the Company during the three (3) months ended June 30, 2003 from advertisers of the Company who received paid introductions through the Company pursuant to search results or search listing traffic supplied by Commercial Affiliates) (the "Top Commercial Affiliate Agreements").
(c) Set forth in Section 2.14(c) of the Company Disclosure Letter is (A) a list, as of the date hereof, of all loan or credit agreementagreements, security agreementnotes, indenturebonds, mortgagemortgages, pledge indentures and other agreements and instruments pursuant to which any Indebtedness (as defined below) of the Company or any of its Subsidiaries in an aggregate principal amount in excess of $250,000 is outstanding or may be incurred on the terms thereof and (B) the respective principal amounts currently outstanding thereunder as of the date hereof. For purposes of this Section 2.14(b), "Indebtedness" shall mean, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (B) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other instrument evidencing indebtedness title retention agreements relating to property purchased by such person, (other than equipment purchases E) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), (F) all capitalized lease agreements entered into obligations of such person, (G) all obligations of others secured by any Lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency swap transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business), (J) all obligations of such person to purchase securities (or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to dateother property) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach which arises out of or in default under connection with the terms sale of the same or substantially similar securities or property, and (K) all guarantees and arrangements having the economic effect of a guarantee of such person of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision indebtedness of any such contract, agreement or commitmentother person.
Appears in 1 contract
Sources: Merger Agreement (Yahoo Inc)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither the Company nor any Subsidiary of Target Corporation its subsidiaries has, nor is it a party to nor is it bound by:
(a) any collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(c) any employment or consulting agreement, contract or commitment with any officer or director-level employee, not terminable by the Company on thirty days' notice without liability, except to the extent general principles of wrongful termination law may limit the Company's ability to terminate employees at will;
(d) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(e) any agreement, contract or commitment (excluding real and personal property leases) which involves payment by the Company of $20,000 or more (excluding amounts which are already owing by the Company or such subsidiary at the date of the Company Balance Sheet);
(f) any agreement under which the Company or its subsidiaries is bound restricted from selling, licensing, or otherwise distributing any of its products to any class of customers, in any geographic area, during any period of time, or in any segment of the market;
(g) any agreement under which the Company is restricted from entering into any line of business, introducing any products, undertaking any activities, or competing with any other person or entity in any line of business, in any geographic area, during any period of time, or in any segment of the market;
(h) any agreement under which the Company or its subsidiaries provides warranty for any of its products or services or pursuant to which the Company or its subsidiaries has any repair, replacement, service, or similar warranty obligations for products or services previously sold by the Company or its subsidiaries; or
(i) any written agreement under which the Company or oral contract, agreement or commitment which involves its subsidiaries is or may involve aggregate future payments (whether in payment of a debtbe obligated to remove any products, as a result of a guarantee or indemnificationradios, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is notcables, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessbase stations, or (ii) any employment agreement, non-competition agreement, any loan related equipment previously sold or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in installed by the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany.
Appears in 1 contract
Agreements, Contracts and Commitments. Except (a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts that are in effect as described in Schedule 2.17of the date of this Agreement (each, neither Target Corporation nor any Subsidiary of Target Corporation is a party to or is bound by “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract relating to any written material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessretirement plans, or any other material employee benefit plans or arrangements;
(ii) any each Company Contract requiring payments by the Company after the date of this Agreement in excess of $250,000 pursuant to its express terms relating to the employment agreementof, nonor the performance of employment-competition agreementrelated services by, any loan Person, including any employee, consultant or credit agreementindependent contractor, security agreementor entity providing employment related, indentureconsulting or independent contractor services, mortgagenot terminable by the Company or the Company Subsidiary on ninety (90) calendar days’ or less notice without Liability, pledge except to the extent general principles of wrongful termination law may limit the Company’s, the Company Subsidiary’s or such successor’s ability to terminate employees at will;
(iii) each Company Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other instrument evidencing indebtedness event, such as termination of employment);
(other than equipment purchases iv) each Company Contract relating to any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course Ordinary Course of business)Business;
(v) each Company Contract containing (A) any covenant limiting the freedom of the Company, the Company Subsidiary or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Company’s products or services (B) any sales representativemost-favored pricing arrangement, alliance, partnership, joint venture, joint operating (C) any exclusivity provision or similar agreement. The Target Corporation has delivered (D) any non-solicitation provision;
(vi) each Company Contract relating to Acquiring Corporation a correct capital expenditures and complete copy requiring payments after the date of each written agreement listed this Agreement in Schedule 2.17 (as amended excess of $250,000 pursuant to date) and a written summary setting forth the its express terms and conditions not cancelable without penalty;
(vii) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viii) each oral agreement referred Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in Schedule 2.17. With excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company or the Company Subsidiary or any loans or debt obligations with officers or directors of the Company;
(ix) each such agreementCompany Contract requiring payment by or to the Company after the date of this Agreement in excess of $250,000 pursuant to its express terms: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may berelating to any exclusive distribution agreement; (B) involving provision of material services or products with respect to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation any pre-clinical or clinical development activities of the transactions contemplated herebyCompany; (C) neither Target Corporation nor involving any joint venture, collaboration, co-development or other similar arrangement currently in force under which the Company or the Company Subsidiary of Target Corporation is in breach under has continuing obligations to develop or commercialize any material provision of product, technology or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiariesservice, or permit terminationany agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, modificationin whole or in part, by the Company or acceleration, under any such contract, agreement or commitmentthe Company Subsidiary; (D) providing for a license or other rights to the Knowledge of Target Corporation, no Company or the Company Subsidiary under any material third party Intellectual Property that is necessary for the development or manufacture of any product, service or technology of the Company; (E) providing for the Company or the Company Subsidiary granting a license or other rights under any material Company IP Rights owned or purported to be owned by or exclusively licensed to the Company or the Company Subsidiary; or (F) pursuant to which any third party contributes to the conception, development, reduction to practice of any material Company IP Rights owned or purported to be owned by the Company or the Company Subsidiary, in breach each case (A) through (F), except for Company Contracts entered into in the Ordinary Course of Business;
(x) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in default connection with the Contemplated Transactions;
(xi) each Company Real Estate Lease;
(xii) each Company Contract that is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act;
(xiii) each Company Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $500,000; or
(xiv) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or the Company Subsidiary, as applicable, and (A) which involves payment or receipt by the Company or the Company Subsidiary after the date of this Agreement under any such agreement, contract or commitment of more than $500,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate or (B) that is material to the business or operations of the Company and the Company Subsidiary, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. Neither the Company nor the Company Subsidiary has, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Company and the Company Subsidiary, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any such contractCompany Material Contract to change, agreement any material amount paid or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) payable to the Knowledge of Target Corporation, no party has repudiated Company under any Company Material Contract or any other material term or provision of any such contract, agreement or commitmentCompany Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Except (a) Section 3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as described in Schedule 2.17of the date of this Agreement (each, neither Target Corporation nor any Subsidiary of Target Corporation is a party to or is bound by “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract relating to any written material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessretirement plans, or any other employee benefit plans or arrangements;
(ii) any each Company Contract requiring payments by the Company after the date of this Agreement in excess of $75,000 relating to the employment agreementof, nonor the performance of employment-competition agreementrelated services by, any loan Person, including any employee, consultant or credit agreementindependent contractor, security agreementor Entity providing employment related, indentureconsulting or independent contractor services, mortgagenot terminable by the Company on ninety (90) calendar days’ or less notice without liability, pledge except to the extent general principles of wrongful termination Law may limit the Company’s, or other instrument evidencing indebtedness such successor’s ability to terminate employees at will;
(other than equipment purchases iii) each Company Contract relating to any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course Ordinary Course of businessBusiness;
(iv) each Company Contract containing (A) any covenant limiting the freedom of the Company or the Surviving Company to engage in any line of business or compete with any Person, or limiting the development, manufacture, or distribution of the Company’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision except for Company Contracts with Persons that are employees or independent contractors;
(v) each Company Contract (A) pursuant to which any Person granted the Company an exclusive license under any Intellectual Property, or (B) pursuant to which the Company granted any Person an exclusive license under any Company IP Rights;
(vi) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(vii) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viii) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 or creating any material Encumbrances with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company;
(ix) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $50,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any sales representativepre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, partnership, joint venture, joint operating cooperation, development or similar agreement. The Target Corporation other agreement currently in force under which the Company has delivered continuing obligations to Acquiring Corporation develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(x) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(xi) each Company Contract with a correct Governmental Authority;
(xii) each Company Contract to which the Company is a party or by which any of its assets and complete copy properties is currently bound, which involves annual obligations of each written agreement listed payment by, or annual payments to, the Company in Schedule 2.17 excess of $50,000;
(as amended to datexiii) a Company Real Estate Lease; or
(xiv) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company, and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) which involves payment or receipt by the agreement is Enforceable against Target Corporation Company after the date of this Agreement under any such agreement, contract or its Subsidiariescommitment of more than $25,000 in the aggregate, as or obligations after the case may be; date of this Agreement in excess of $25,000 in the aggregate or (B) that is material to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation business or operations of the transactions contemplated hereby; Company taken as a whole.
(Cb) neither Target Corporation nor any Subsidiary The Company has delivered or made available to Parent accurate and complete copies of Target Corporation is in breach under any material provision of or is all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in default in written form. The Company has not, nor to the Company’s Knowledge, as of the date of this Agreement has any material respect under other party to a Company Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms of, or conditions of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such contractCompany Material Contract, agreement or commitment described in Schedule 2.17, and would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Knowledge Company, as of Target Corporationthe date of this Agreement, no event has occurred each Company Material Contract is valid, binding, enforceable and no condition exists whichin full force and effect, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiariessubject to the Enforceability Exceptions. No Person is renegotiating, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) has a right pursuant to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contractCompany Material Contract to change, agreement any material amount paid or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) payable to the Knowledge of Target Corporation, no party has repudiated Company under any Company Material Contract or any other material term or provision of any such contractCompany Material Contract, agreement and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or commitmentcancel any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17As of the date of this Agreement, neither Target Corporation VFI nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by:
(a) any employment or consulting agreement, contract or commitment with any (i) officer or (ii) employee whose annual base compensation exceeds $125,000 or member of VFI's Board of Directors, other than those that are terminable by VFI or any of its subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law or applicable foreign law may limit VFI's or any of its subsidiaries' ability to terminate employees at will;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty other than: (i) any written agreement of indemnification or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty entered into in the ordinary course of business), (ii) any agreement of indemnification entered into in connection with the sale or lease of hardware products (or in connection with the sale, lease or license of the software related to or incorporated in hardware products) in the ordinary course of business, (iii) any agreement of indemnification entered into in connection with services performed in the ordinary course of business, (iv) any indemnification agreement between VFI or any sales representativeof its subsidiaries and any of their respective officers, alliancedirectors or employees; (v) guarantees of obligations of a VFI subsidiary by VFI or another VFI subsidiary in the ordinary course of business, and (vi) any agreement of indemnification entered into in connection with the licensing by VFI of software in the ordinary course of business;
(d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of VFI or any of its subsidiaries or subsequent parent or sister companies to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by VFI or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which VFI has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise;
(f) any joint marketing or development agreement currently in force under which VFI or any of its subsidiaries have continuing material obligations to jointly market any product, joint operating technology or similar service and which may not be canceled without penalty upon notice of 30 days or less, or any material agreement pursuant to which VFI or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by VFI or any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to VFI and its subsidiaries taken as a whole, except for (i) any agreement, contract or commitment pursuant to which source code is provided for maintenance of the source code or for development of modifications thereto only, and not for distribution of source or object code to third parties, and (ii) any source code escrow agreement entered into in the ordinary course of business that contains provisions relating to the release of source code if VFI and/or any of its subsidiaries ceases to do business or fails to provide appropriate maintenance; or
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any VFI Product, except as a distributor in the normal course of business. The Target Corporation has delivered Neither VFI nor any of its subsidiaries, nor to Acquiring Corporation VFI's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 VFI Contract (as amended defined below), is in breach, violation or default under, and neither VFI nor any of its subsidiaries has since January 1, 1996 received, to date) and a its knowledge, written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument to which VFI or any of its subsidiaries is a party or by which it is bound that are exhibits to VFI's SEC Reports, that are required to be disclosed in Schedule 2.17. With respect the VFI Schedules pursuant to each clauses (a) through (h) above or pursuant to Section 2.9 hereof or that are otherwise material to VFI (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "VFI CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such VFI Contract, or accelerationwould permit any other party to seek damages, under the agreement; and which would result, in VFI's reasonable judgment, in a loss of benefits to VFI and/or liabilities to VFI in excess of $1 million (E) to the Knowledge of Target Corporationfor any individual breach, no party has repudiated any provision of any such contract, agreement violation or commitmentdefault).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Verifone Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section 2.16 and Section 2.2(b) of the Company Disclosure Letter, neither Target Corporation nor any Subsidiary of Target Corporation the Company is not a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result the Company’s Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by the Company on no more than ninety (90) days notice without liability or financial obligation;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, any loan agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business)business other than indemnification agreements between the Company and any of its officers or directors;
(d) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any sales representative, allianceownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) any material joint operating marketing or similar development agreement. The Target Corporation has delivered Company, or to Acquiring Corporation the Company’s knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) and a written summary setting forth defined herein), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (f) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a “COMPANY CONTRACT”) in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to be material to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany.
Appears in 1 contract
Sources: Merger Agreement (Soefl Inc.)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 3.15(a) of the Company Disclosure Letter (specifying the appropriate paragraph), as of the date of this Agreement, the Company is not a party to, nor is it bound by (any Contract of a nature described in Schedule 2.17below to which the Company is a party or otherwise bound being referred to herein as a “Material Contract”) and, neither Target Corporation collectively, as the “Material Contracts”):
(i) nor any is its Subsidiary of Target Corporation is a party to or is bound by by, (iA) any written Employee Agreement required to be listed on Section 3.23(a) of the Company Disclosure Letter and containing a commitment to grant any change in control payment, severance or oral contract, agreement or commitment which involves or may involve aggregate future payments other termination-related payment (whether payable in payment of a debtsecurities, as a result of a guarantee or indemnification, for goods or services cash or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less), other than Company Options or Company RSUs, or (B) any Employee Agreement required to be listed on Section 3.23(a) of the Company Disclosure Letter and which cannot be terminated without cause at the discretion of the Company or its Subsidiary, as applicable;
(ii) nor is its Subsidiary a party to or bound by, any agreement, policy, past practice or plan (including any stock plan, stock appreciation rights plan or stock purchase orders plan or other equity compensation arrangements (whether payable in securities, cash or otherwise)) any of the benefits of which will be provided or could be increased, or the vesting of benefits of which could be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, either alone or upon the occurrence of additional or subsequent events (except as required by this Agreement) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, either alone or upon the occurrence of additional or subsequent events;
(iii) any agreement providing for the sale or other issuance of any Company Capital Stock;
(iv) all IP Licenses;
(v) any lease of tangible personal property providing for annual payments in excess of $50,000 individually or $200,000 in the aggregate;
(vi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $75,000 individually or $750,000 in the aggregate;
(vii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the Ordinary Course of Business;
(viii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to Indebtedness, the borrowing of money, extension of credit or security interest;
(ix) any pending purchase order or contract for the purchase of materials or sale services by the Company involving in excess of goods and/or services entered into by Target Corporation $75,000 individually or $750,000 in the ordinary course aggregate;
(x) any powers of businessattorney;
(xi) any standstill or similar Contract;
(xii) any Contracts providing for currency exchange, commodities or other similar hedging transactions;
(xiii) any Contract granting any exclusive rights, rights of first refusal or other similar rights, price protection, “most favored nation” or similar provisions, or otherwise limiting the rights of the Company to sell distribute or manufacture any products or services;
(iixiv) any employment agreementTax allocation, non-competition agreementsharing, any loan indemnity or credit agreement, security agreement, indenture, mortgage, pledge closing agreement or other instrument evidencing indebtedness similar Contract;
(other than equipment purchases or lease xv) any agreements entered into in the ordinary course of business), or with any sales representative, alliance, Governmental Authority;
(xvi) any partnership, joint venture, strategic alliance or similar Contract;
(xvii) any Contract to which an Interested Party is a party;
(xviii) any Contract involving the settlement of litigation or other similar claims;
(xix) any dealer, distribution, joint marketing, development agreement, sales representative, original equipment manufacturer, value added, remarketer, reseller, or independent software vendor, or other agreement for marketing, sales, provision or distribution of the Company’s products, technology or services; or
(xx) any other agreement, Contract or commitment, including any service, operating or similar agreementmanagement agreement or arrangement with respect to any of the Company’s properties (whether leased or owned), that involves annual payments in excess of $75,000 individually or $750,000 in the aggregate or more and is not cancelable without penalty within thirty (30) days.
(b) The Company is in compliance in all material respects with, and has not breached, violated or defaulted under in any material respect, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract to which the Company is a party or by which any of its Assets and Properties are subject, nor has there occurred any event or condition that could constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract to which the Company is a party or by which any of its Assets and Properties are subject is in full force and effect, and the Company is not subject to any material default thereunder, nor is any party obligated to the Company pursuant to any such Contract subject to any material default thereunder.
(c) The Target Corporation Company has delivered made available to Acquiring Corporation a Parent true, correct and complete copy copies of each written agreement all Contracts listed in Schedule 2.17 (as amended to dateSection 3.15(a) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms ofCompany Disclosure Letter, any such contractincluding all amendments, agreement or commitment described in Schedule 2.17supplements, exhibits and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentancillary agreements thereto.
Appears in 1 contract
Sources: Merger Agreement (Lsi Corp)
Agreements, Contracts and Commitments. (a) Except as described set forth in Schedule 2.172.12(a) of the Stockholder Disclosure Letter, as of the date hereof, neither Target Corporation the Company, WW nor any Subsidiary of Target Corporation has, is a party to or to, is bound by by, and the Business is not the beneficiary of, or subject to, any of the following (those agreements, arrangements, contracts or commitments to which the Business is subject, but to which the Company, WW or the Subsidiaries is not, as between the Stockholder or its subsidiaries (other than the Company, WW and the Subsidiaries) and the Company, WW and the Subsidiaries, are clearly marked as such on Schedule 2.12(a)):
(i) any written collective bargaining agreements,
(ii) any agreements or oral contractarrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to the Company, WW or any Subsidiary,
(v) any agreement or plan, 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,
(vi) any agreement or plan to issue, grant, deliver or sell or authorize, or that proposes the issuance, grant, delivery or sale of, or to purchase or that proposes the purchase of, any shares, or any rights attached to any shares, in the Company, WW or any Subsidiary or any securities convertible into or exchangeable for shares in the Company, WW or any Subsidiary, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any shares in the Company, WW or any Subsidiary or other convertible securities,
(vii) any fidelity or surety bond or completion bond,
(viii) any lease of personal property requiring payments over the term of such lease or series of related leases individually in excess of $200,000 or any lease of real property,
(ix) any agreement of indemnification or guaranty,
(x) any agreement, contract or commitment which involves containing any covenant limiting the freedom of the Company, WW or may involve aggregate any Subsidiary to engage in any line of business or to compete with any person,
(xi) any agreement, contract or commitment relating to capital expenditures or involving future payments or a series of related payments in excess of $100,000,
(whether xii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in payment any business enterprise outside the ordinary course of a debtthe Company's or WW's business, as applicable,
(xiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (ix) hereof,
(xiv) any purchase order or contract for the purchase of raw materials involving $50,000 or more,
(xv) any construction contracts involving future payments or a result series of related payments in excess of $50,000,
(xvi) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use of distribution of the Company's or WW's products, technologies or services;
(xvii) any distribution, joint marketing or development agreement that includes any provision granting any person a guarantee right of first refusal, right of first negotiation or indemnificationexclusive, "most favored nation" or preferential placement or other preferential rights,
(xviii) any agreement pursuant to which the Company, WW or any Subsidiary has developed for goods and/or delivered to or services has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property,
(xix) any agreement, contract or otherwisecommitment for the purchase of advertising,
(xx) by any other agreement, contract or to Target Corporation of commitment that involves $100,000 or more and which or is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries not cancelable without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or payment on 30 days notice or lessdefault with the lapse of time, other than purchase orders for the purchase or sale giving of goods and/or services entered into by Target Corporation in the ordinary course of businessnotice, or (ii) any employment agreementboth, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed as are all noted in Schedule 2.17 (as amended to date2.12(b) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) Stockholder Disclosure Letter, neither Target Corporation the Company, WW nor any Subsidiary nor the Stockholder nor any of Target Corporation is in breach under its subsidiaries has materially breached, violated or defaulted under, or received written notice that it has materially breached, violated or defaulted under, any material provision of or is not in default in any material respect under the terms ofor conditions of any agreement, contract or commitment required to be set forth on Schedule 2.12(a) of the Stockholder Disclosure Letter or Schedule 2.11(g) of the Stockholder Disclosure Letter (any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, or permit terminationa "Contract"). Each Contract is in full force and effect (assuming the Contracts have been duly authorized, modification, or acceleration, under executed and delivered by the agreement; respective other parties thereto) and (E) is not subject to any default thereunder of which the Stockholder has Knowledge by any party obligated to the Knowledge of Target CorporationCompany, no party has repudiated WW or any provision of any such contract, agreement or commitmentSubsidiary pursuant thereto.
Appears in 1 contract
Sources: Merger Agreement (Cendant Corp)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section 2.16 and Section 2.2(b) of the Company Disclosure Letter, neither Target Corporation nor any Subsidiary of Target Corporation the Company is not a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result the Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by the Company on no more than thirty (30) days notice without liability or financial obligation;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, any loan agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business)business other than indemnification agreements between the Company and any of its officers or directors;
(d) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any sales representative, allianceownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) any material joint operating marketing or similar development agreement. The Target Corporation has delivered Company, or to Acquiring Corporation the Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) and a written summary setting forth defined herein), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (f) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to be material to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany.
Appears in 1 contract
Agreements, Contracts and Commitments. Except (a) Section 3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as described in Schedule 2.17of the date of this Agreement (each, neither Target Corporation nor any Subsidiary of Target Corporation is a party to or is bound by “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract relating to any written material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or oral contractretirement plans, or any other employee benefit plans or arrangements;
(ii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by the Company or its Subsidiaries on ninety (90) days’ or less notice without liability, except to the extent general principles of wrongful termination Law may limit the Company’s, its Subsidiaries’ or such successor’s ability to terminate employees at will;
(iii) each Company Contract relating to any agreement or commitment plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which involves will be increased, or may involve aggregate future payments the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (whether either alone or in payment conjunction with any other event, such as termination of a debtemployment), as a result or the value of a guarantee any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(iv) each Company Contract relating to any agreement of indemnification or indemnificationguaranty not entered into in the Ordinary Course of Business;
(v) each Company Contract containing (A) any covenant limiting the freedom of the Company, for goods its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Company’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision or otherwise(D) by any non-solicitation provision;
(vi) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(vii) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viii) each Company Contract relating to Target Corporation any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or more and which is not, by its terms, terminable by Target Corporation creating any material Encumbrances with respect to any assets of the Company or one or more any of its Subsidiaries without penalty or any loans or debt obligations with officers or directors of the Company;
(ix) each Company Contract requiring payment on 30 days notice by or lessto the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other than purchase orders for agreement currently in force under which the purchase Company has continuing obligations to develop or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessmarket any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or (iiD) any employment agreementContract to license any patent, non-competition agreementtrademark registration, service ▇▇▇▇ registration, trade name or copyright registration to or from any loan third party to manufacture or credit agreementproduce any product, security agreementservice or technology of the Company or any Contract to sell, indenturedistribute or commercialize any products or service of the Company, mortgagein each case, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements except for Company Contracts entered into in the ordinary course Ordinary Course of business)Business;
(x) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(xi) each Company Real Estate Lease;
(xii) each Company Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $100,000; or
(xiii) any sales representative, alliance, partnership, joint venture, joint operating other Company Contract that is not terminable at will (with no penalty or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to datepayment) and a written summary setting forth by the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the case may be; Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $100,000 in the aggregate, or obligations after the date of this Agreement in excess of $100,000 in the aggregate or (B) that is material to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation business or operations of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, Company and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, taken as a whole.
(b) The Company has delivered or permit terminationmade available to Zordich accurate and complete copies of all Company Material Contracts, modificationincluding all amendments thereto. There are no Company Material Contracts that are not in written form. Neither the Company nor any of its Subsidiaries has, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, breached, violated or defaulted under, or accelerationreceived notice that it breached, under violated or defaulted under, any of the terms or conditions of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such contractCompany Material Contract, agreement or commitment; (D) would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Knowledge Company and its Subsidiaries, as of Target Corporationthe date of this Agreement, no third party each Company Material Contract is valid, binding, enforceable and in breach of full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or in default under has a right pursuant to the terms of any such contractCompany Material Contract to change, agreement any material amount paid or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) payable to the Knowledge of Target Corporation, no party has repudiated Company under any Company Material Contract or any other material term or provision of any such contract, agreement or commitmentCompany Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Zafgen, Inc.)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17the MetaTools Schedules, neither Target Corporation MetaTools nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by: (ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result MetaTools' Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by MetaTools or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit MetaTools' or any of its subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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; 20
(iic) any employment agreement, non-competition agreement, any loan agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between MetaTools or any sales representativeof its subsidiaries and any of its officers or directors; (d) any agreement, alliancecontract or commitment containing any covenant limiting the freedom of MetaTools or any of its subsidiaries to engage in any line of business or compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or (f) any material joint operating marketing or similar development agreement. The Target Corporation has delivered Neither MetaTools nor any of its subsidiaries, nor to Acquiring Corporation MetaTools' knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 MetaTools Contract (as amended to date) and a written summary setting forth defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which MetaTools or any of its subsidiaries is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (l) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "METATOOLS CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such MetaTools Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentbe material to MetaTools.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Metatools Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17the SPC Schedules, neither Target Corporation SPC nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by: (ia) any written collective bargaining agreements; (b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessretirement plans, or any other employee benefit plans or arrangements; (iic) any employment or consulting agreement, non-competition agreementcontract or commitment with any officer or director level employee, not terminable by SPC or any of its subsidiaries on thirty days notice without liability, except to the extent general principles of wrongful termination law may limit SPC's or any of its subsidiaries, ability to terminate employees at will; (d) any agreement or plan, including, without limitation, any loan stock option plan, stock appreciation right plan or credit agreementstock purchase plan, security agreementany of the benefits of which will be increased, indentureor the vesting of benefits of which will be accelerated, mortgage, pledge by the occurrence of any of the transactions contemplated by this Agreement or other instrument evidencing indebtedness the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (other than equipment purchases e) any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between SPC or any sales representativeof its subsidiaries and any of its officers or directors; (f) any agreement, alliancecontract or commitment containing any covenant limiting the freedom of SPC or any of its subsidiaries to engage in any line of business or compete with any person; (g) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $50,000 and not cancelable without penalty;
(h) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture, joint operating venture or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may beother business enterprise; (Bi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the Knowledge borrowing of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation money or extension of the transactions contemplated herebycredit; (Cj) neither Target Corporation nor any Subsidiary joint marketing or development agreement (excluding agreements with resellers, value added resellers or independent software vendors entered into in the ordinary course of Target Corporation is in breach under business that do not permit such resellers or vendors to modify SPC's or any material provision of its subsidiaries' software products); (k) any distribution agreement (identifying any that contain exclusivity provisions); or is not in default in (l) any material respect under the terms ofother agreement, any such contract, agreement contract or commitment described in Schedule 2.17, (excluding real and to the Knowledge personal property leases) which involve payment by SPC or any of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, subsidiaries under any such contractagreement, agreement contract or commitment; commitment of $50,000 or more in the aggregate and is not cancelable without penalty within thirty (D30) days. Neither SPC nor any of its subsidiaries, nor to SPC's knowledge any other party to an SPC Contract (as defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any of the Knowledge of Target Corporation, no third party is in breach of material terms or in default under the terms conditions of any of the agreements, contracts or commitments to which SPC is a party or by which it is bound of the type described in clauses (a) through (l) above (any such contractagreement, agreement contract or commitment, an "SPC Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such SPC Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentwhich would have a Material Adverse Effect on SPC.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.172.20, neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries has, nor is it a party to nor is it bound by, any of the following:
(a) any material product distribution agreement,
(b) any material joint marketing agreement or product development agreement,
(c) any material agreement relating to the performance of product evaluation or testing or regulatory compliance by other parties with respect to products of the Company or its subsidiaries,
(d) any material agreement with or order by any Government Entity relating to the testing, manufacture, registration, labeling, marketing or sale of products manufactured, marketed or sold by the Company or its subsidiaries,
(e) any material agreement with or order by any Government Entity relating to the providing by such government of employees related to the manufacture of products,
(f) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements,
(g) any employment or consulting agreement, or any other similar type of contract or commitment for an amount in excess of Fifty Thousand Dollars ($50,000.00) in any one year, which in any of such cases is bound not terminable by the Company on thirty (30) days notice without liability,
(h) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,
(i) any written agreement of indemnification or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business)business other than such agreements or guarantees between the Company and any of its subsidiaries,
(j) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of One Hundred Thousand Dollars ($100,000.00) singularly or Five Hundred Thousand Dollars ($500,000.00) in the aggregate,
(k) any agreement, contract or commitment relating to the disposition or acquisition of assets not in the ordinary course of business or any sales representative, allianceownership interest in any corporation, partnership, joint ventureventure or other business enterprise,
(l) any mortgage, indenture, loan or credit agreement, grant agreement, security agreement or other agreement or instrument relating to the borrowing of money, extension of credit, or receipt of money,
(m) any collective bargaining agreement,
(n) any real property or personal property lease requiring aggregate future payments by the Company or its subsidiaries in excess of One Hundred Thousand Dollars ($100,000.00),
(o) any material joint operating venture or partnership agreement or arrangement,
(p) any material consignment or similar agreement relating to inventory or equipment, or
(q) any other agreement, contract or commitment which involves payment by the Company of One Hundred Thousand ($100,000.00) or more and is not cancelable without penalty within thirty (30) days. The Target Corporation has delivered to Acquiring Corporation a correct Each of the agreements, contracts and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement commitments referred to in Schedule 2.17. With respect clauses above that has not expired or been terminated in accordance with its terms is in full force and effect, except where the failure to each such agreement: (A) be in full force and effect does not, collectively, have a Material Adverse Effect on the agreement Company, and, except as otherwise disclosed, is Enforceable against Target Corporation or its Subsidiaries, as not subject to any material default thereunder of which the case may be; (B) Company is aware by any party obligated to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany pursuant thereto.
Appears in 1 contract
Sources: Merger Agreement (Technitrol Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section 3.15 and Section 3.2(b) of SurePure US Disclosure Letter, SurePure US is neither Target Corporation nor any Subsidiary of Target Corporation is a party to or nor is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result SurePure US’s Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by SurePure US on no more than thirty days notice without liability or financial obligation;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, any loan agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business)business other than indemnification agreements between SurePure US and any of its officers or directors;
(d) any agreement, contract or commitment containing any covenant limiting the freedom of SurePure US to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any sales representative, allianceownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) any material joint operating marketing or similar development agreement. The Target Corporation has delivered SurePure US, nor to Acquiring Corporation SurePure US’s knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 SurePure US Contract (as amended to date) and a written summary setting forth defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which SurePure US is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (f) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a “SurePure US Contract”) in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such SurePure US Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentbe material to SurePure US.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, -22- 27 or sale the vesting of goods and/or services 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;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software products or services in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(f) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or
(k) any other agreement, contract or commitment under which Company or a subsidiary is contractually obligated to make or entitled to receive payments of $250,000 or more individually. The Target Corporation has delivered Neither Company nor any of its subsidiaries, nor to Acquiring Corporation Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule 2.17. With respect to each (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Merger Agreement (Spyglass Inc)
Agreements, Contracts and Commitments. Except as described otherwise set forth ------------------------------------- in Schedule 2.17Part 2.14 of the Company Letter, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written or oral contractemployment agreement, agreement contract or commitment which involves with any employee or may involve aggregate future payments (whether in payment member of a debt, as a result Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Company's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders 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;
(c) any agreement of indemnification, any guaranty or any instrument evidencing indebtedness for the purchase or borrowed money by way of direct loan, sale of goods and/or services entered into debt securities, purchase money obligation, conditional sale, or otherwise;
(d) any agreement, obligation or commitment containing covenants purporting to limit or which effectively limit the Company's or any of its subsidiaries' freedom to compete in any line of business or in any geographic area or which would so limit Company or Surviving Corporation or any of its subsidiaries after the Effective Time or granting any exclusive distribution or other exclusive rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Corporation Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of businessbusiness or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;
(f) any licensing, distribution, marketing, reseller, merchant services, advertising, sponsorship or other similar agreement other than Ordinary Course Agreements;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology; or
(h) (i) any other agreement, contract or commitment currently in effect that is material to Company's business as presently conducted and proposed to be conducted entered into since the filing of Company's Quarterly Report on Form 10-Q for the Fiscal Quarter ending March 31, 1999, or (ii) any employment amendment or modification to any agreement, noncontract or commitment required to be publicly filed by Company pursuant to the Exchange Act which has not been so filed as a result of such amendment or modification having been entered into subsequent to the filing of such Form 10-competition Q. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Letter pursuant to clauses (a) through (h) above, pursuant to Section 2.9 hereof, or pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act (any such agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Merger Agreement (Imall Inc)
Agreements, Contracts and Commitments. Except for the FBC Documents and as described otherwise set forth in Schedule 2.17Section 2.16 of the FBC Disclosure Schedules, neither Target Corporation nor any Subsidiary as of Target Corporation the date hereof FBC is not a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer, director or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessemployee, other than purchase orders for those that are terminable by FBC on no more than 30 days' notice without liability or financial obligation;
(b) any agreement of indemnification outside the purchase ordinary course of FBC's business or sale any guaranty;
(c) any agreement, contract or commitment containing any covenant limiting the right of goods and/or services entered into FBC to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(d) any agreement, contract or commitment relating to the disposition or acquisition by Target Corporation FBC of assets not in the ordinary course of business, business or (ii) pursuant to which FBC has any employment agreement, non-competition agreement, material ownership interest in any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in the ordinary course of business), or any sales representative, alliancecorporation, partnership, joint ventureventure or other business enterprise; or
(e) any other agreement, joint operating contract or similar agreementcommitment currently in effect that is expected to represent more than ten percent (10%) of FBC's revenue for the calendar year 2004 or that requires FBC to make payments of greater than $10,000 per year or more than $20,000 in the aggregate. The Target Corporation has delivered Neither FBC, nor to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 FBC's knowledge any other party to an FBC Contract (as amended to date) defined below), is in breach, violation or default under, and a FBC has not received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which FBC is a party or by which it is bound that are required to be disclosed in Schedule 2.17. With respect the FBC Disclosure Schedules pursuant to each clauses (a) through (e) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, or permit termination, modification, or acceleration, an "FBC Contract"). The FBC Contracts are in full force and effect and FBC has performed all of the material obligations required to be performed by it and is entitled to all accrued benefits under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentall FBC Contracts.
Appears in 1 contract
Sources: Merger Agreement (Ec Power Inc)
Agreements, Contracts and Commitments. (a) Except as described in Schedule 2.17would not be material to the HDD Business, neither Target Corporation Parent nor any Subsidiary of Target Corporation its Subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debtthe Board of Directors of Parent, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, other than those that are terminable by Target Corporation Parent or one or more any of its Subsidiaries on no more than thirty (30) days' notice without penalty Liability or payment Financial obligation to Parent;
(ii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, restricted stock 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 30 days notice the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indeminification or less, any guaranty other than purchase orders for the purchase or sale any agreement of goods and/or services indeminification entered into by Target Corporation in connection with the sale or license of products or services in the ordinary course of business, or ;
(iiiv) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Parent or any of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Parent or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Parent has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than its Subsidiaries; or
(vi) any mortgages, joint operating indentures, guarantees, loans or similar agreement. The Target Corporation has delivered credit agreements, security agreements or other agreements or instruments relating to Acquiring Corporation a correct and complete copy the borrowing of each written agreement listed in Schedule 2.17 money or extension of credit.
(as amended to dateb) and a written summary setting forth the terms and conditions Neither Parent nor any of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) nor to the Knowledge knowledge of Target CorporationParent any other party to a Parent Contract (as defined below), is in breach, violation or default under, and neither Parent nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the agreement will continue material terms or conditions of any of the agreements, contracts or commitments to which Parent or any of its Subsidiaries is a party or by which Parent or any of its Subsidiaries is bound that are required to be Enforceable against disclosed in the other parties thereto following the consummation of the transactions contemplated hereby; Parent Schedules pursuant to this Agreement (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contractagreements, agreement contracts or commitment described commitments are "Parent Contracts") in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach manner as would permit any other party to cancel or default by Target Corporation or its Subsidiariesterminate any such Parent Contract, or would permit terminationany other party to seek material damages or other material remedies (for any of such breaches, modificationviolations or defaults, or acceleration, under any such contract, agreement or commitment; (D) to all of them in the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Quantum Corp /De/)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation (a) Neither the Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result the Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days notice without liability or financial obligation to the Company;
(ii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(iii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of hardware or software products in the ordinary course of business;
(iv) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's subsidiaries;
(vi) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (ii90) days or less;
(vii) any employment agreement, non-competition contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any loan third party to manufacture or reproduce any Company Product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(ix) any mortgages, indentures, guarantees, loans or credit agreementagreements, security agreement, indenture, mortgage, pledge agreements or other instrument evidencing indebtedness (agreements or instruments relating to the borrowing of money or extension of credit, other than equipment purchases or lease agreements entered into accounts receivables and payables in the ordinary course of business;
(x) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or
(xi) any other agreement, contract or commitment that has a value of $300,000 or more in any individual case.
(b) Neither the Company nor any of its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither the Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any sales representative, alliance, partnership, joint venture, joint operating of its subsidiaries is a party or similar agreement. The Target Corporation has delivered by which it is bound that are required to Acquiring Corporation a correct and complete copy of each written agreement listed be set forth in Schedule 2.17 the Company Disclosure Letter (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Company Contract") in such a manner as would permit any ---------------- other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation nor any Subsidiary of Target Corporation (a) ATS and ATLANTIC is not a party to or is bound by to, as of the date hereof, (i) any written collective bargaining agreements or oral contractany agreements that contain any severance pay liabilities or obligations, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (ii) any Employee Benefit Plans, (iii) any employment agreement, non-competition contract or commitment with an employee, or agreements to pay severance, (iv) other than the continuing employment of J▇▇▇▇ ▇▇▇▇▇▇▇▇ and M▇▇▇▇▇ ▇▇▇▇▇▇▇▇, any agreements between or among ATS and ATLANTIC or one of its Affiliates or with any Related Person of ATS and ATLANTIC, (v) any agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge indenture or other instrument evidencing for borrowed money and any agreement or other instrument which contains restrictions with respect to payment of distributions in respect of any outstanding Securities that has not been disclosed to Cerberus in writing, (vi) any agreement, contract or commitment containing any covenant limiting the freedom of ATS and ATLANTIC to engage or compete in any line of business or with any Person or in any geographic area during any period of time, (vii) any agreement, contract or commitment relating to capital expenditures in excess of $5,000, that has not been disclosed to Cerberus in writing; (viii) any agreement, contract or commitment relating to the acquisition, disposition or voting of assets or capital stock of any business enterprise, including ATS and ATLANTIC, (ix) any contract that requires ATS and ATLANTIC to purchase its total requirements of any product or service from a third party, that has not been disclosed to Cerberus in writing; (x) any contract that provides for the indemnification by ATS and ATLANTIC of any Person for, or the assumption of, any Tax, environmental or other liability of any Person, that has not been disclosed to Cerberus in writing; (xi) any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contract to which ATS and ATLANTIC is a party, that has not been disclosed to Cerberus in writing; (xii) except for contracts relating to trade receivables, any contract relating to indebtedness (other than equipment purchases or lease agreements entered into including guarantees) of ATS and ATLANTIC, that has not been disclosed to Cerberus in the ordinary course of business)writing; (xiii) any contract with any Governmental Authority to which ATS AND ATLANTIC is a party, or that has not been disclosed to Cerberus in writing; (xiv) any sales representative, alliance, partnership, contract to which ATS AND ATLANTIC is a party that provides for any joint venture, joint operating partnership or similar arrangement by ATS AND ATLANTIC, (xv) any tax partnership agreement, (xvi) any agreement that provides for an irrevocable power of attorney that will be in effect after the Closing Date or (xvii) any agreement that constitutes a lease of real property, that has not been disclosed to Cerberus in writing (it being acknowledged by the Parties that the Shareholder owns the real property in which ATS AND ATLANTIC currently operate, and is subject to a Lease Agreement). The Target Corporation ATS AND ATLANTIC has delivered made available to Acquiring Corporation a correct Cerberus accurate and complete copy copies of each all written agreement listed in Schedule 2.17 Material Contracts, including all amendments thereto.
(as amended to dateb) and a written summary setting forth ATS AND ATLANTIC has not materially breached any of the terms and or conditions of each oral agreement referred to in Schedule 2.17any lease, contract, agreement, commitment, instrument or understanding (whether written or oral). With respect to each such agreement: (A) the agreement There is Enforceable against Target Corporation or its Subsidiariesnot, as the case may be; (B) to the Knowledge of Target CorporationATS AND ATLANTIC, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms ofMaterial Contract, any such contract, agreement default or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after with notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiarieson the part of any of the parties thereto, or permit any notice of termination, cancellation or material modification, or acceleration, under any such contract, agreement or commitment; .
(Dc) Except to the Knowledge extent the enforceability thereof may be limited by Creditor Rights, each of Target Corporationthe Material Contracts (i) constitutes the valid and binding obligation of ATS AND ATLANTIC and constitutes the valid and binding obligation of the other parties thereto, no third party (ii) is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; full force and effect and (Eiii) immediately after the Closing, will continue to the Knowledge constitute a valid and binding obligation of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentATS AND ATLANTIC.
Appears in 1 contract
Sources: Stock Purchase Agreement (Cerberus Cyber Sentinel Corp)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section 2.16 and Section 2.2(b) of the Company Schedules, neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result the Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days notice without liability or financial obligation;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, any loan agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between the Company or any sales representativeof its subsidiaries and any of its officers or directors;
(d) any agreement, alliancecontract or commitment containing any covenant limiting the freedom of the Company or any of its subsidiaries to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) any material joint operating marketing or similar development agreement. The Target Corporation has delivered Neither the Company nor any of its subsidiaries, nor to Acquiring Corporation the Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) and a written summary setting forth defined herein), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (f) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to be material to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cardiogenesis Corp)
Agreements, Contracts and Commitments. Except as described in set forth n the attached Schedule 2.17A, neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written Any employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result the Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days notice without liability or financial obligation;
(b) Any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, any loan Any agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between the Company or any sales representativeof its subsidiaries and any of its officers or directors;
(d) Any agreement, alliancecontract or commitment containing any covenant limiting the freedom of the Company or any of its subsidiaries to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) Any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) Any material joint operating marketing or similar development agreement. The Target Corporation has delivered Neither the Company nor any of its subsidiaries, nor to Acquiring Corporation the Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) and a written summary setting forth defined herein), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (f) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to be material to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (TechAlt, Inc.)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17The following agreements, neither Target Corporation nor any Subsidiary contracts or commitments with respect to which Proxim or one of Target Corporation its subsidiaries is a party to or is bound by are referred to herein as the "PROXIM CONTRACTS":
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result Proxim's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Proxim or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Proxim;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Proxim or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Proxim or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of assets in excess of $250,000 not in the ordinary course of business), business or pursuant to which Proxim has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Proxim's subsidiaries;
(f) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which Proxim or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Proxim or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Proxim or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any material agreement. The Target Corporation has delivered , contract or commitment currently in force to Acquiring Corporation license any third party to manufacture or reproduce any Proxim product or service or any material agreement, contract or commitment currently in force to sell or distribute any Proxim products or service, including any Proxim Material IP Contract, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Western Multiplex;
(h) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(i) any settlement agreement; provided that a correct Proxim Contract shall not include any settlement agreement entered into more than five (5) years before the date of this Agreement; or
(j) any other agreement, contract or commitment (i) in connection with or pursuant to which Proxim and complete copy its subsidiaries will spend or receive (or are expected to spend or receive), in the aggregate, more than $250,000 during the current calendar year or during the next calendar year, (ii) the termination, expiration or loss of each written agreement listed in Schedule 2.17 the counterparty's performance of which could reasonably be expected to have a Material Adverse Effect on Proxim or (iii) that is a material contract (as amended defined in Item 601(b)(10) of Regulation S-K of the SEC rules). Neither Proxim nor any of its subsidiaries, nor to date) Proxim's Knowledge any other party to a Proxim Contract, is in material breach, violation or default under, and a neither Proxim nor any of its subsidiaries has received written summary setting forth notice that it has materially breached, violated or defaulted under, any of the terms and or conditions of each oral agreement referred any Proxim Contract in such a manner as would permit any other party to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation cancel or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, terminate any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its SubsidiariesProxim Contract, or would permit terminationany other party to seek material damages or other remedies (for any or all of such breaches, modificationviolations or defaults, or acceleration, under any such contract, agreement or commitment; (D) to in the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Western Multiplex Corp)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section ------------------------------------- 2.20 of the Company Schedule, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment vice president or higher level employee or member of a debt, as a result Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company or any of its subsidiaries;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders 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;
(c) any agreement of indemnification or any guaranty other than any product warranty or agreement of indemnification substantially in the Company's standard form for the purchase applicable standard form of customer agreement in which the warranty or sale of goods and/or services indemnification agreement is incorporated entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(f) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any product, service or technology of Company or any of its subsidiaries or any agreement, contract or commitment currently in force to sell or distribute any products, service or technology of Company or any of its subsidiaries except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or
(k) any other agreement, contract or commitment currently in force under which Company will pay, or expects to receive, after the date hereof an amount in excess of $150,000 or more individually. The Target Corporation has delivered Neither Company nor any of its subsidiaries, nor to Acquiring Corporation Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which any of them are bound that are required to be disclosed in Sections 2.19(h) or 2.20 of the Company Schedule 2.17. With respect or that are otherwise material to each Company or any of its subsidiaries (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17(a) The Company does not have, neither Target Corporation nor any Subsidiary of Target Corporation is a party to or is not bound by by:
(i) any written or oral contract, license or agreement to which the Company is a party (A) with respect to Company Intellectual Property licensed or commitment transferred to any third party or (B) pursuant to which involves a third party has licensed or may involve aggregate future payments (whether transferred any Intellectual Property to the Company, with a value or cost in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation excess of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or 25,000;
(ii) any employment or consulting agreement, non-competition contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(iii) any loan agreement or credit plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iv) any fidelity or surety bond or completion bond;
(v) any lease of personal property with fixed annual rental payments in excess of $25,000;
(vi) any contract, license or agreement between the Company and any third party wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, hold harmless or otherwise assume or incur any obligation or liability with respect to the infringement or misappropriation by the Company or such third party of the Intellectual Property of any third party;
(vii) any agreement, security contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(viii) any agreement, indenturecontract or commitment relating to capital expenditures and involving future payments in excess of $25,000;
(ix) any agreement, mortgage, pledge contract or other instrument evidencing indebtedness (other than equipment purchases commitment relating to the disposition or lease agreements entered into acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business);
(x) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit other than trade credit;
(xi) any sales representative, alliance, partnershippurchase order or contract for the purchase of materials involving $25,000 or more;
(xii) any construction contracts;
(xiii) any distribution, joint venturemarketing or development agreement; or
(xiv) any other agreement, joint operating contract or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation commitment that involves $25,000 or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of more or is not cancelable without penalty within thirty (30) days.
(b) The Company is in default in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any material respect under of the terms ofor conditions of any agreement, contract, license or commitment to which it is a party or by which it is bound (any such agreement, contract, agreement license or commitment described in Schedule 2.17commitment, a "Contract"), and to the Knowledge Company is not aware of Target Corporation, no any event has occurred and no condition exists which, after notice or lapse of time or both, that would constitute such a material breach breach, violation or default by Target Corporation with the lapse of time, giving of notice or its Subsidiariesboth. Each Contract is in full force and effect, or permit terminationand, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge knowledge of Target Corporationthe Company, no third party is all other parties to each Contract are in breach compliance with, and have not breached any term of, such Contract. The Company 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 in connection with the Merger or to remain in default effect without modification after the Closing. Following the Effective Time, the Company will be permitted to exercise all of the Company's rights under the terms Contracts to the same extent the Company would have been able to had the Merger not occurred and without the payment of any such contractadditional amounts or consideration other than ongoing fees, agreement royalties or commitment, or permit termination, modification, or acceleration, under payments which the agreement; and (E) Company would otherwise be required to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentpay.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tut Systems Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17the Miami Subs Schedules, neither Target Corporation Miami Subs nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessretirement plans, or any other employee benefit plans or arrangements;
(iic) any employment or consulting agreement, non-competition agreementcontract or commitment with any officer or director level employee, not terminable by Miami Subs or any of its subsidiaries on thirty days notice without liability, except to the extent general principles of wrongful termination law may limit Miami Subs's or any of its subsidiaries' ability to terminate employees at will;
(d) any agreement or plan, including, without limitation, any loan stock option plan, stock appreciation right plan or credit agreementstock purchase plan, security agreementany of the benefits of which will be increased, indentureor the vesting of benefits of which will be accelerated, mortgage, pledge by the occurrence of any of the transactions contemplated by this Agreement or other instrument evidencing indebtedness the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(other than equipment purchases e) any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between Miami Subs or any sales representativeof its subsidiaries and any of its present or former officers or directors;
(▇) ▇▇▇ agreement, alliancecontract or commitment containing any covenant limiting the freedom of Miami Subs or any of its subsidiaries to engage in any line of business or compete with any person;
(g) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty;
(h) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint ventureventure or other business enterprise;
(i) any mortgages, joint operating indentures, loans or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation credit agreements, security agreements or its Subsidiaries, as the case may be; (B) other agreements or instruments relating to the Knowledge borrowing of Target Corporationmoney or extension of credit;
(j) any joint marketing or development agreement;
(k) any distribution agreement (identifying any that contain exclusivity provisions); or
(l) any other agreement, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement contract or commitment described in Schedule 2.17, (excluding real and to the Knowledge personal property leases) which involve payment by Miami Subs or any of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, subsidiaries under any such contractagreement, agreement contract or commitment; commitment of $100,000 or more in the aggregate and is not cancelable without penalty within thirty (D30) days. Neither Miami Subs nor any of its subsidiaries, nor to Miami Subs's knowledge any other party to any Miami Subs Contract (as defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any of the Knowledge of Target Corporation, no third party is in breach of material terms or in default under the terms conditions of any of the agreements, contracts or commitments to which Miami Subs is a party or by which it is bound of the type described in clauses (a) through (l) above (any such contractagreement, agreement contract or commitment, a "Miami Subs Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Miami Subs Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) to the Knowledge of Target Corporationwhich cancellation, no party has repudiated any provision of any such contract, agreement termination or commitmentdamages would have a Material Adverse Effect on Miami Subs.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result Parent's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Parent or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Parent;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, agreement of indemnification or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (guaranty other than equipment purchases or lease agreements any agreement of indemnification entered into in the ordinary course of businessbusiness of Parent and substantially in the form provided to Company;
(d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Parent or any of its subsidiaries to engage in any line of business (other than with respect to limitations on the distribution by Parent of certain content and service providers), or to compete with any sales representativeperson or granting any exclusive distribution rights of Parent services;
(e) any agreement, alliancecontract or commitment currently in force relating to the disposition or acquisition by Parent or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Parent has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Parent's subsidiaries;
(i) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which Parent or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or (ii) any material agreement pursuant to which Parent or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Parent or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less except for agreements, contracts or commitments with an annual value of less than $100,000;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Parent and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Parent product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Parent products, service or technology except those agreements with customers, distributors or sales representatives made in the normal course of business and substantially in the form previously provided to Company;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or
(k) any other agreement, contract or commitment that involves annual expenditures or receipts of $2,500,000 or more individually. The Target Corporation has delivered Neither Parent nor any of its subsidiaries, nor to Acquiring Corporation Parent's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Parent Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Parent nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Parent or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Parent Schedule 2.17. With respect to each (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "PARENT CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Parent Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section 2.16 and Section 2.2(b) of the Company Shareholders Disclosure Letter, neither Target Corporation nor any Subsidiary of Target Corporation the Company is not a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result the Company’s Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by the Company on no more than ninety (90) days notice without liability or financial obligation;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, any loan agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business)business other than indemnification agreements between the Company and any of its officers or directors;
(d) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any sales representative, allianceownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) any material joint operating marketing or similar development agreement. The Target Corporation has delivered Company, or to Acquiring Corporation the Company Shareholders' knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) and a written summary setting forth defined herein), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company is a party or by which it is bound of the type described -12- in Schedule 2.17. With respect to each clauses (a) through (f) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a “COMPANY CONTRACT”) in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to be material to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany.
Appears in 1 contract
Agreements, Contracts and Commitments. Except (a) Section 3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as described in Schedule 2.17of the date of this Agreement (each, neither Target Corporation nor any Subsidiary of Target Corporation is a party to or is bound by “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) any written or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or each Company Contract relating to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessemployment of, or the performance of employment-related services by, any current Company Associate that is not immediately terminable at-will by the Company without notice, severance, or other similar cost or liability;
(ii) any employment agreementeach Company Contract the primary purpose of which is indemnification or guaranty, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements except as entered into in the ordinary course Ordinary Course of Business;
(iii) each Company Contract containing (A) any covenant limiting the freedom of the Company or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the ability of Company to conduct its business;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000;
(vi) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company, in each case, having an outstanding principal amount in excess of $100,000;
(vii) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any sales representativepre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, partnership, joint venture, joint operating cooperation, development or similar agreement. The Target Corporation other agreement currently in force under which the Company has delivered continuing obligations to Acquiring Corporation develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or (D) any Company Contract to license any patent, trademark registration, service ▇▇▇▇ registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Company Contract to which the Company is a correct party or by which any of its assets and complete copy properties is currently bound, which involves annual obligations of each written agreement listed payment by, or annual payments to, the Company in Schedule 2.17 excess of $100,000; or
(xi) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company, as amended to date) applicable, and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) which involves payment or receipt by the agreement is Enforceable against Target Corporation Company after the date of this Agreement under any such agreement, contract or its Subsidiariescommitment of more than $100,000 in the aggregate, as or obligations after the case may be; date of this Agreement in excess of $100,000 in the aggregate or (B) that is material to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation business or operations of the transactions contemplated hereby; Company.
(Cb) neither Target Corporation The Company has delivered or made available to PubCo accurate and complete copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. The Company has not, nor to the Company’s Knowledge, as of the date of this Agreement has any Subsidiary other party to a Company Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of Target Corporation the terms or conditions of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Company, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in breach full force and effect, subject to the Enforceability Exceptions. As of the date of this Agreement, no Person is renegotiating with the Company to change any material amount paid or payable to the Company under any Company Material Contract or any other material provision of term or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described in Schedule 2.17(a) As of the date hereof, neither Target Corporation the Company nor any Subsidiary of Target Corporation its Subsidiaries is a party to or is bound by by:
(i) any written or oral contract, employment agreement or commitment employment contract with any director, officer, employee or consultant, other than those that are terminable at-will by the Company or any of its Subsidiaries on no more than thirty (30) days' notice without contractual liability or financial obligation, other than any such agreement or contract pursuant to which involves the Company and its Subsidiaries have contractual liability not in excess of $125,000;
(ii) any agreement of indemnification or may involve aggregate future payments any guaranty outside the ordinary course of the Company's business;
(whether iii) other than Commercial Affiliate Agreements, any agreement or contract involving express minimum revenues stated in payment of a debt, any such agreement or contract as amended to date to the Company and its Subsidiaries taken as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation whole in excess of $100,000 500,000 in any one year period in the future. Section 2.14(a)(iii) of the Company Disclosure Letter sets forth any such agreements or more contracts of the Company or any of its Subsidiaries and which is notidentifies each one which, by its terms, has terms that will be modified or adjusted, or which, by its terms, will become terminable by Target Corporation the other party thereto, in each case as a result of the execution of this Agreement or the Voting Agreements or the consummation of the Merger;
(iv) any agreement or contract containing any covenant limiting in any respect the right of the Company or any of its Subsidiaries (i) to engage in any line of business, (ii) to develop, market or distribute products or services, or (iii) to compete with any person, or granting any exclusive distribution rights;
(v) any lease for (A) real property in which the amount of payments which the Company or any of its Subsidiaries is required to make on an annual basis exceeds $100,000 or (B) personal property in which the amount of payments which the Company or any of its Subsidiaries is required to make on an annual basis exceeds $150,000;
(vi) other than Commercial Affiliate Agreements, any agreement or contract pursuant to the express terms of which the Company or any of its Subsidiaries is currently obligated to pay excess of $500,000 in any one year period in the future which is not terminable by the Company or more of its Subsidiaries without penalty or payment on 30 in excess of $500,000 upon notice of thirty (30) days notice or less;
(vii) any agreement, other than purchase orders for contract or commitment currently in force relating to the purchase disposition or sale acquisition by the Company or any of goods and/or services entered into by Target Corporation its Subsidiaries after the date hereof of a material amount of assets not in the ordinary course of businessbusiness or pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's Subsidiaries;
(iiviii) any employment agreement, non-competition contract or commitment currently in force to license or provide source code to any third party for any product or technology;
(ix) any agreement, lease, plan, arrangement or other contract currently required to be filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Securities Act other than those currently on file with the SEC (including any amendments to agreements filed as of the date of the Company's Form 10-Q for the quarter ended March 31, 2003 that are required to be filed); or
(x) any "standstill" or similar agreement with respect to any equity securities of the Company.
(b) Set forth in Section 2.14(b) of the Company Disclosure Letter is a list of the top twenty (20) Commercial Affiliate Agreements (as measured based on revenues that were earned by the Company during the three (3) months ended June 30, 2003 from advertisers of the Company who received paid introductions through the Company pursuant to search results or search listing traffic supplied by Commercial Affiliates) (the "TOP COMMERCIAL AFFILIATE AGREEMENTS").
(c) Set forth in Section 2.14(c) of the Company Disclosure Letter is (A) a list, as of the date hereof, of all loan or credit agreementagreements, security agreementnotes, indenturebonds, mortgagemortgages, pledge indentures and other agreements and instruments pursuant to which any Indebtedness (as defined below) of the Company or any of its Subsidiaries in an aggregate principal amount in excess of $250,000 is outstanding or may be incurred on the terms thereof and (B) the respective principal amounts currently outstanding thereunder as of the date hereof. For purposes of this Section 2.14(b), "INDEBTEDNESS" shall mean, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (B) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other instrument evidencing indebtedness title retention agreements relating to property purchased by such person, (other than equipment purchases E) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), (F) all capitalized lease agreements entered into obligations of such person, (G) all obligations of others secured by any Lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency swap transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business), (J) all obligations of such person to purchase securities (or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to dateother property) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach which arises out of or in default under connection with the terms sale of the same or substantially similar securities or property, and (K) all guarantees and arrangements having the economic effect of a guarantee of such person of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision indebtedness of any such contract, agreement or commitmentother person.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17the Miami Subs Schedules, neither Target Corporation Miami Subs nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of businessretirement plans, or any other employee benefit plans or arrangements;
(iic) any employment or consulting agreement, non-competition agreementcontract or commitment with any officer or director level employee, not terminable by Miami Subs or any of its subsidiaries on thirty days notice without liability, except to the extent general principles of wrongful termination law may limit Miami Subs's or any of its subsidiaries' ability to terminate employees at will;
(d) any agreement or plan, including, without limitation, any loan stock option plan, stock appreciation right plan or credit agreementstock purchase plan, security agreementany of the benefits of which will be increased, indentureor the vesting of benefits of which will be accelerated, mortgage, pledge by the occurrence of any of the transactions contemplated by this Agreement or other instrument evidencing indebtedness the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(other than equipment purchases e) any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between Miami Subs or any sales representativeof its subsidiaries and any of its present or former officers or directors;
(f) any agreement, alliancecontract or commitment containing any covenant limiting the freedom of Miami Subs or any of its subsidiaries to engage in any line of business or compete with any person;
(g) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty;
(h) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint ventureventure or other business enterprise;
(i) any mortgages, joint operating indentures, loans or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation credit agreements, security agreements or its Subsidiaries, as the case may be; (B) other agreements or instruments relating to the Knowledge borrowing of Target Corporationmoney or extension of credit;
(j) any joint marketing or development agreement;
(k) any distribution agreement (identifying any that contain exclusivity provisions); or
(l) any other agreement, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement contract or commitment described in Schedule 2.17, (excluding real and to the Knowledge personal property leases) which involve payment by Miami Subs or any of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, subsidiaries under any such contractagreement, agreement contract or commitment; commitment of $100,000 or more in the aggregate and is not cancelable without penalty within thirty (D30) days. Neither Miami Subs nor any of its subsidiaries, nor to Miami Subs's knowledge any other party to any Miami Subs Contract (as defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any of the Knowledge of Target Corporation, no third party is in breach of material terms or in default under the terms conditions of any of the agreements, contracts or commitments to which Miami Subs is a party or by which it is bound of the type described in clauses (a) through (l) above (any such contractagreement, agreement contract or commitment, a "Miami Subs Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Miami Subs Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) to the Knowledge of Target Corporationwhich cancellation, no party has repudiated any provision of any such contract, agreement termination or commitmentdamages would have a Material Adverse Effect on Miami Subs.
Appears in 1 contract
Agreements, Contracts and Commitments. Except As of the date hereof, except as described in set forth on Schedule 2.174.16(a), neither Target Corporation nor any Subsidiary of Target Corporation the Company does not have, is not a party to nor is it bound by:
(a) any collective bargaining agreements;
(b) any employment or is bound consulting agreement, contract or commitment with any officer, director, employee or member of the Company's Board of Directors, other than those that are terminable by the Company without liability of financial obligation of the Company;
(c) any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement, under which a firm or other organization provides services to the Company;
(d) 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;
(e) any fidelity or surety bond or completion bond;
(f) any lease of personal property having a value individually in excess of $5,000;
(g) any agreement of indemnification or guaranty other than standard indemnification terms contained in contracts with resellers and distributors and licensees of the Company's products;
(h) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(i) any written or oral contractagreement relating to capital expenditures and involving future payments in excess of $5,000;
(j) any agreement, agreement contract or commitment currently in force relating to the disposition or acquisition by the Company after the date of this Agreement of a material amount of assets not in the Ordinary Course of Business or pursuant to which involves the Company has any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(k) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (g) hereof;
(l) any purchase order or contract involving $5,000 or more;
(m) any construction contracts;
(n) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant agreement;
(o) any agreement pursuant to which the Company has granted or may involve aggregate future payments be obligated to grant in the future, to any party a source-code license or option or other right to use or acquire source-code, including any agreements which provide for source code escrow arrangements;
(whether in payment p) any sales representative, original equipment manufacturer, value added, remarketer or other agreement for distribution of a debt, as a result of a guarantee or indemnification, for goods the Company's products or services or otherwisethe products or services of any other person or entity;
(q) by any agreement pursuant to which the Company has advanced or loaned any amount to Target Corporation any shareholder of $100,000 the Company or more and which is notany director, by its termsofficer, terminable by Target Corporation employee or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, consultant other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation business travel advances in the ordinary course of business, or business consistent with past practice;
(iir) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements settlement agreement entered into in the ordinary course of business)since January 1, or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation 1997 that provides for continuing obligations of the transactions contemplated herebyCompany; or
(Cs) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of other agreement that involves $5,000 or more or is not in default in cancelable without penalty within thirty (30) days. Except as set forth on Schedule 4.16(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any material respect under of the terms ofor conditions of any agreement, contract or commitment required to be set forth on Schedule 4.16(a) or Schedule 4.14 (any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, or permit terminationa "Contract"). Each Contract is in full force and effect and, modificationexcept as otherwise disclosed in Schedule 4.16(b), or acceleration, under is not subject to any default thereunder of which the agreement; and (E) Company has knowledge by any party obligated to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany pursuant thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Medicalogic/Medscape Inc)
Agreements, Contracts and Commitments. Except as described in (a) Schedule 2.172.8(a) identifies, neither Target Corporation nor and the Company has made available to Merger Sub, true, complete and correct copies of each of the following Contracts to which the Company or any Subsidiary of Target Corporation its Subsidiaries is a party to or is bound by the extent not available in complete and unredacted form on ▇▇▇▇▇ (each, a “Company Material Contract” and, collectively, the “Company Material Contracts”):
(i) each Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the Securities and Exchange Commission on the date of this Agreement;
(ii) any written employment agreement (other than (x) Contracts for “at will” employment that do not contain any severance obligations and (y) non-competition Contracts benefiting the Company between the Company and any employee of the Company or oral contractany of its Subsidiaries), agreement and any agreement, contract or commitment pursuant to which involves the Company or any of its Subsidiaries is or may involve aggregate future payments become obligated to make any severance, termination or similar payment to any current or former employee, executive officer or director of the Company or any of its Subsidiaries;
(whether iii) any Contract that limits (or would limit after the date hereof) the freedom or ability of the Company or any of its Subsidiaries to compete in any material manner in any line of business or in any geographic area;
(iv) any Contract (other than Company Stock Options) to which the Company or any of its Subsidiaries is a party (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities of any of the Company or any of its Subsidiaries, (B) providing any Person with any preemptive right or any similar right with respect to any securities of any of the Company or any of its Subsidiaries, or (C) providing the Company or any of its Subsidiaries with any right of first refusal with respect to, or right to repurchase or redeem, any securities of the Company or any of its Subsidiaries;
(v) any Contract (or group of related agreements with the same third parties) under which the Company or any of its Subsidiaries created, incurred, assumed or guaranteed any Funded Debt or letters of credit (other than Contracts between the Company and any of its Subsidiaries or between Subsidiaries of the Company);
(vi) any Contract containing “standstill” or similar provisions currently in effect;
(vii) any Contract that contemplates or involves the payment or delivery of a debt, as a result of a guarantee cash or indemnification, for goods or services or otherwise) other consideration by or to Target Corporation the Company or any of its Subsidiaries in an amount or having a value in excess of $100,000 250,000 in the aggregate for, or contemplates or involves the performance of services by or to the Company or any of its Subsidiaries having a value in excess of $250,000 in the aggregate;
(viii) any partnership, limited liability company, joint venture or other similar agreement that is material to the Company and its Subsidiaries;
(ix) Contracts under which the Company or any of its Subsidiaries has (x) lent or promised to lend, or made any other loan or advance to, or other investment in, any other Person, in each case, in excess of $50,000 or (y) lent or promised to lend, or made any other loan or advance to an executive officer or director of the Company or any of its Subsidiaries;
(x) distribution or franchise Contracts related to the assets or the businesses of the Company or any of its Subsidiaries, except for such Contracts that are cancelable on not more and which is not, than thirty (30) days’ notice by its terms, terminable by Target Corporation the Company or one or more any of its Subsidiaries without penalty or increased cost;
(xi) consulting, agency or advertising Contracts related to the assets or the businesses of the Company or any of its Subsidiaries, and involving payment to or by the Company or any of its Subsidiaries in excess of $250,000, except for such Contracts that are cancelable on 30 days not more than thirty (30) days’ notice by the Company or lessany of its Subsidiaries without penalty or increased cost;
(xii) Contracts relating to licenses or royalties, whether the Company or any of its Subsidiaries is the licensor or licensee thereunder (other than purchase orders with respect to off-the-shelf or prepackaged software);
(xiii) Contracts for the purchase or sale of goods and/or services entered into any business, corporation, partnership, joint venture, association or other business organization or any division, operating unit or product line of the Company or any of its Subsidiaries;
(xiv) Contracts for the lease (whether the Company or any of its Subsidiaries is lessee or lessor thereunder) or rental of any Rental Fleet with (A) a term of one year or longer or (B) where the aggregate payments under any lease where the Company or any of its Subsidiaries is the lessee thereunder are more than $500,000; Schedule 2.8(a)(xiv) lists, as of February 28, 2005, the original cost basis of all Rental Fleet subject to leases where the Company or any of its Subsidiaries is the lessee thereunder required to be disclosed on such schedule pursuant to this clause (xiv);
(xv) powers of attorney;
(xvi) Contracts under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries;
(xvii) any Contract granting another Person an option to purchase or sell (A) personal property or assets of the Company or any of its Subsidiaries having a value in excess of $250,000 or (B) any Owned Real Property;
(xviii) Contracts relating to commissions based on amounts paid for the sale, lease or rental of Rental Fleet to be paid by Target Corporation the Company or any of its Subsidiaries to any Person, other than an employee of the Company or any of its Subsidiaries, that are not terminable at the discretion of the Company or any of its Subsidiaries;
(xix) Contracts relating to suretyship or performance bond, whether the Company or any of its Subsidiaries is the beneficiary or obligor thereunder;
(xx) Contracts relating to material indemnification or contribution obligations of the Company or any of its Subsidiaries, other than pursuant to the Contracts listed pursuant to Section 2.8(a)(viii); and
(xxi) Government Contracts involving payments in excess of $100,000.
(b) Neither the Company nor any of its Subsidiaries is currently in material breach of, or has received in writing any claim or threat that it is currently in material breach of, any of the terms or conditions of any Company Material Contract. Neither the Company nor any of its Subsidiaries has received notice of a claim for indemnification under any Company Material Contract.
(c) Each Company Material Contract is in full force and effect and, to the knowledge of the Company, no other party to such contract is in default in any material respect.
(d) Schedule 2.8(d) is a true and complete list as of April 1, 2005 of all purchase orders for Rental Fleet and Property, Plant and Equipment (as defined under GAAP) submitted by the Company or any of its Subsidiaries for which the equipment has not been received by the Company or its Subsidiaries as of the date hereof.
(e) To the Company’s knowledge, each of the Company’s and its Subsidiaries’ accounting and procurement systems are in compliance in all material respects with all material governmental regulations and requirements applicable to Government Contracts.
(f) To the Company’s knowledge, with respect to each Government Contract for which performance has not been or was not completed or final payment has not been or was not received, in either case, prior to the date that is three years prior to the date of this Agreement: (i) the Company and each of its Subsidiaries have complied with all material terms and conditions of such Government Contract; (ii) the Company and each of its Subsidiaries have complied with all material requirement of Law expressly pertaining to such Government Contract; (iii) all facts set forth in or acknowledged by any representations and certifications executed by the Company in connection with a Government Contract were complete and correct in all material respects as of their effective date, and the Company and each of its Subsidiaries have complied in all material respects with any material obligations imposed by such representations and certifications; (iv) neither the United States Government nor any prime contractor, subcontractor or other Person has notified the Company or any of its Subsidiaries, either orally or in writing, that the Company or any of its Subsidiaries has breached or violated in any material respect any Law, or any material certification, representation, clause, provision or requirement pertaining to such Government Contract; and (v) no termination for convenience, termination for default, cure notice or show cause notice is in effect as of the date hereof pertaining to any Government Contract, except any notice that, individually or in the aggregate, has not had, and could not reasonably be expected to have, a Material Adverse Effect on the Company.
(g) Neither the Company nor any of its Subsidiaries nor to the knowledge of the Company any of their respective directors or officers is (or during the last three (3) years has been) under any material administrative, civil or criminal investigation, or indictment or audit by any Governmental Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract (other than in the ordinary course of business consistent with past practice, such as routine DCAA audits, in which no such irregularities, misstatements or omissions were identified that, individually or in the aggregate, had, or could reasonably be expected to have, a Material Adverse Effect on the Company); and during the last three (3) years, to the Company’s knowledge, neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation (other than in the ordinary course of business) or made a voluntary disclosure to the United States Government, with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract.
(h) To the Company’s knowledge, there are (i) no outstanding claims against the Company or any of its Subsidiaries, either by the United States Government or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Government Contract; (ii) any employment agreement, non-competition agreement, any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into in no formal disputes between the ordinary course of business), Company or any sales representative, alliance, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as on the case may be; (B) to one hand, and the Knowledge of Target CorporationUnited States Government, the agreement will continue to be Enforceable against on the other parties thereto following hand, under the consummation Contract Disputes Act or any other Laws; and (iii) and no disputes between the Company or any of its Subsidiaries, on the transactions contemplated hereby; (C) neither Target Corporation nor one hand, and any Subsidiary of Target Corporation is prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any Government Contract, except in breach under each case, for any material provision of claim or dispute where the amount in dispute is not in default in excess of $100,000.
(i) Neither the Company nor any material respect under the terms ofof its Subsidiaries nor, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge Company’s knowledge any of Target Corporation, no event its or the Subsidiary’s directors or officers is (or during the last three (3) years has occurred been) suspended or debarred from participation in the award of contracts with any Governmental Authority or has been (or during such period was) found nonresponsible by any Governmental Authority (it being understood that debarment and no condition exists which, after notice suspension and nonresponsibility does not include ineligibility to bid for certain contracts due to generally applicable bidding requirements).
(j) No Government Contract to which the Company or lapse any of time or both, would constitute such its Subsidiaries is a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision an aggregate funded or unfunded backlog in excess of any such contract, agreement or commitment$500,000.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as described in Schedule 2.17set forth on Section 4.19(a) of the Seller Disclosure Letter, neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result the Company’s Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days notice without liability or financial obligation to the Company;
(ii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(iii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale, license, distribution, reselling or other transfer of software products in the ordinary course of business or in connection with the provision of services in the ordinary course of business;
(iv) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business presently conducted by the Company or any subsidiary, or to compete with any person or granting any exclusive distribution rights;
(iiv) any employment agreement, non-competition agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which the Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than the Company’s subsidiaries;
(vi) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which the Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Seller or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less;
(vii) any agreement. The Target Corporation , contract or commitment currently in force to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Products, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon written notice of ninety (90) days or less;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(x) any material settlement agreement entered into within three (3) years prior to the date of this Agreement; or
(xi) any other material agreement, contract or commitment currently in force that is outside the ordinary course of business or that has delivered a value of $50,000 or more within a twelve (12) month period in any individual case.
(b) Neither the Company nor any of its subsidiaries, nor to Acquiring Corporation Seller’s knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in material breach, violation or default under, and a neither the Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be set forth in Schedule 2.17. With respect to each the Seller Disclosure Letter (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a “Company Contract”) in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Stock Purchase Agreement (Qpagos)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.175.1(y), neither Target Corporation the Company nor any Subsidiary of Target Corporation is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer, director, higher level employee, or may involve aggregate future payments (whether in payment member of a debt, as a result the Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than purchase orders for those that are terminable by the purchase Company or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, any Subsidiary on no more than thirty (30) days' notice without liability or financial obligation;
(ii) any employment agreementbonus, non-competition agreementdeferred compensation, pension, profit sharing or retirement plans; 27
(iii) any loan agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness any guaranty (other than equipment purchases or lease as set forth in standard customer, distributor, and reseller software license agreements entered into in connection with the sale or license of software products in the ordinary course of business);
(iv) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business since the date of the Balance Sheet;
(v) any distribution, joint marketing, or development agreement under which the Company or any Subsidiary has continuing obligations to jointly market any product, technology or service, or any sales representativeagreement pursuant to which the Company or any Subsidiary has continuing obligations to jointly develop any Intellectual Property Rights that will not be owned, alliancein whole or in part, partnershipby the Company or such Subsidiary;
(vi) any agreement, joint venturecontract, joint operating or similar commitment to provide source code to any third party for any product or technology;
(vii) any agreement. The Target Corporation has delivered , contract or commitment currently to Acquiring Corporation a correct license any third party to manufacture or reproduce any product, service or technology (other than as set forth in standard distributor and complete copy reseller software license agreements entered into in the normal course of each written agreement listed in Schedule 2.17 business); or
(as amended to dateviii) and a written summary setting forth any other material agreement, contract or commitment of the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation Company or its Subsidiaries, as Subsidiaries not otherwise identified in a schedule hereto. Neither the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation Company nor any Subsidiary of Target Corporation is in breach under breach, violation or default under, and neither the Company nor any material provision Subsidiary has received notice that it has breached, violated or defaulted under, any of or is not in default in any material respect under the terms ofor conditions of any of the agreements, contracts, or commitments to which the Company or any Subsidiary is a party or by which it is bound that are required to be disclosed in Schedule 5.1(y) (any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Company Contract"). Each Company Contract is in full force and effect and, except as otherwise disclosed in Schedule 5.1(y), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company or permit termination, modificationany Subsidiary pursuant thereto. The Company has obtained, or acceleration, under the agreement; and (E) will obtain subsequent to the Knowledge Closing Date, all necessary consents, waivers and approvals of Target Corporation, no party has repudiated parties to any provision Company Contract as are required to assign right and benefits thereunder to the Surviving Corporation as of any such contract, agreement or commitmentthe Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described set forth in the attached Schedule 2.17A, neither Target Corporation the Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written Any employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director level employee or member of a debt, as a result the Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days notice without liability or financial obligation;
(b) Any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase or sale benefits of goods and/or services entered into by Target Corporation in the ordinary course of businesswhich 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;
(iic) any employment agreement, non-competition agreement, any loan Any agreement of indemnification or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between the Company or any sales representativeof its subsidiaries and any of its officers or directors;
(d) Any agreement, alliancecontract or commitment containing any covenant limiting the freedom of the Company or any of its subsidiaries to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) Any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) Any material joint operating marketing or similar development agreement. The Target Corporation has delivered Neither the Company nor any of its subsidiaries, nor to Acquiring Corporation the Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) and a written summary setting forth defined herein), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound of the type described in Schedule 2.17. With respect to each clauses (a) through (f) above (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek damages, under the agreement; and (E) which would be reasonably likely to be material to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentCompany.
Appears in 1 contract
Sources: Merger Agreement (Nannaco Inc)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation (a) Neither Company nor any Subsidiary of Target Corporation its Subsidiaries is a party to or is bound by by:
(i) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any executive officer or may involve aggregate future payments (whether in payment member of a debtthe Board of Directors of Company, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, other than those that are terminable by Target Corporation Company or one or more any of its Subsidiaries on no more than thirty (30) days' notice without penalty Liability or payment financial obligation to Company;
(ii) 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 30 days notice the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indemnification or less, any guaranty other than purchase orders for the purchase or sale any agreement of goods and/or services indemnification entered into by Target Corporation in connection with the sale or license of products or services in the ordinary course of business, or ;
(iiiv) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Company or any of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than its Subsidiaries; or
(vi) any mortgages, joint operating indentures, guarantees, loans or similar agreement. The Target Corporation has delivered credit agreements, security agreements or other agreements or instruments relating to Acquiring Corporation a correct and complete copy the borrowing of each written agreement listed in Schedule 2.17 money or extension of credit.
(as amended to dateb) and a written summary setting forth the terms and conditions Neither Company nor any of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) nor to the Knowledge knowledge of Target CorporationCompany any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the agreement will continue material terms or conditions of any of the agreements, contracts or commitments to which Company or any of its Subsidiaries is a party or by which Company or any of its Subsidiaries is bound that are required to be Enforceable against disclosed in the other parties thereto following the consummation of the transactions contemplated hereby; Company Schedules pursuant to this Agreement (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contractagreement, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other material remedies (for any or all of such breaches, under violations or defaults, or all of them in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Maxtor Corp)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer or may involve aggregate future payments (whether in payment director or higher level employee or member of a debt, as a result Company's Board of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessDirectors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with the sale or license of software products or services in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease agreements entered into of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company or any sales representative, allianceof its subsidiaries has any material ownership interest in any corporation, partnership, joint ventureventure or other business enterprise other than Company's subsidiaries;
(f) any dealer, distributor, joint operating marketing or similar development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or
(k) any other agreement, contract or commitment under which Company or a subsidiary is contractually obligated to make or entitled to receive payments of $250,000 or more individually. The Target Corporation has delivered Neither Company nor any of its subsidiaries, nor to Acquiring Corporation Company's knowledge any other party to a correct and complete copy of each written agreement listed in Schedule 2.17 Company Contract (as amended to date) defined below), is in breach, violation or default under, and a neither Company nor any of its subsidiaries has received written summary setting forth notice that it has breached, violated or defaulted under, any of the material terms and or conditions of each oral agreement referred any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule 2.17. With respect to each (any such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Merger Agreement (Mih LTD)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(ia) any written Employee Agreement other than those that are terminable by Company or oral contract, any of its subsidiaries without notice and without liability or financial obligation to Company or any subsidiary of Company;
(b) any agreement or commitment plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which involves will be increased, or may involve aggregate future payments the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (whether either alone or in payment combination with any subsequent event or events) or the value of a debt, as a result any of a guarantee the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or indemnification, for goods any guaranty by Company or any of its subsidiaries other than any agreement of indemnification entered into in connection with the sale or license by Company or any of its subsidiaries of products or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or ;
(iid) any employment agreement, non-competition contract or commitment containing any covenant limiting in any material respect the right of Company or any of its subsidiaries to engage in any material line of business or to compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any loan of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or credit pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;
(f) any agreement, security contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(g) any material agreement, indenturecontract or commitment, mortgage, pledge or other instrument evidencing indebtedness (other than equipment purchases or lease standard end-user license, distribution and sale agreements and related maintenance and support agreements entered into in the ordinary course of business), currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors, VARs, service providers, enterprises or sales representativerepresentatives in the normal course of business;
(h) any mortgages, allianceleases, partnershipindentures, joint ventureguarantees, joint operating loans or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation credit agreements, security agreements or its Subsidiaries, as the case may be; (B) other agreements or instruments relating to the Knowledge borrowing of Target Corporationmoney or extension of credit, other than accounts receivable and payables in the agreement will continue to be Enforceable against the other parties thereto following the consummation ordinary course of the transactions contemplated hereby; business;
(Ci) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms ofsettlement agreements, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of which materially affect the conduct of Company's business; or
(j) any other agreement, contract or commitment that has a value of $5,000,000 or more individually and not described in clauses (a) through (i) above. Neither Company or any of its subsidiaries nor, to Company's knowledge, any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound, in each case, that are required to be disclosed in Section 2.19 of the Company Schedule (any such contractagreement, agreement contract or commitment, a "COMPANY CONTRACT"), except for breaches, violations or permit terminationdefaults that, modificationindividually or in the aggregate, or acceleration, under the agreement; and (E) would not reasonably be expected to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentbe material Company.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Juniper Networks Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section 2.21 of the Company Schedule, neither Target Corporation Company nor any either Subsidiary of Target Corporation is a party to or is bound by by:
(ia) any written employment or oral contractconsulting agreement, agreement contract or commitment which involves with any officer, director or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or lessemployee, other than those that are terminable by Company or Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company or Subsidiary;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase orders for plan, any of the purchase benefits of which will be increased, or sale the vesting of goods and/or services 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;
(c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into by Target Corporation in connection with services provided or license of software products in the ordinary course of business, or ;
(iid) any employment agreement, non-competition agreement, any loan contract or credit agreement, security agreement, indenture, mortgage, pledge commitment currently in force relating to the disposition or other instrument evidencing indebtedness (other than equipment purchases acquisition by Company or lease agreements entered into either Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business), business or pursuant to which Company or either Subsidiary has any sales representative, alliancematerial ownership interest in any corporation, partnership, joint ventureventure or other business enterprise;
(e) any mortgages, joint operating indentures, guarantees, loans or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation credit agreements, security agreements or its Subsidiaries, as the case may be; (B) other agreements or instruments relating to the Knowledge borrowing of Target Corporationmoney or extension of credit;
(f) any settlement agreement entered into within five (5) years prior to the date of this Agreement, the agreement will continue except settlement agreements with employees of Company that impose no ongoing obligations on Company or either Subsidiary;
(g) any contracts or agreements that limit or restrict Company or either Subsidiary, or to be Enforceable against the other parties thereto following the consummation Company's knowledge, any of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of their officers or is not in default key employees, from engaging in any material respect under the terms of, business or any such contracts or agreements that limit or restrict anyone other than Company's or either Subsidiary's employees or consultants from competing with Company or either Subsidiary;
(h) any contract, agreement or commitment described requiring Company or either Subsidiary to register the resale of its capital stock or securities under federal or state securities laws;
(i) any powers of attorney or comparable delegations of authority granted by Company or either Subsidiary; or
(j) any other agreement, contract or commitment that has a value of $100,000 or more individually. Neither Company, either Subsidiary, nor to Company's knowledge any other party to a Company Contract (as defined below), is in Schedule 2.17breach, violation or default under, and each of Company and each Subsidiary has not received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or either Subsidiary is a party or by which it is bound that are required to be disclosed in the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under Company Schedule (any such contractagreement, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or permit termination, modificationterminate any such Company Contract, or accelerationwould permit any other party to seek material damages or other remedies (for any or all of such breaches, under violations or defaults, in the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17------------------------------------- Section 3.16 of the Company Disclosure Schedule, as of the date hereof, neither Target Corporation the Company nor any Subsidiary of Target Corporation its Subsidiaries is a party to or is bound by by:
(ia) any written or oral contractconsulting agreement, agreement contract or commitment which involves with any independent contractor or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, consultant other than those that are terminable by Target Corporation the Company or one or more any of its Subsidiaries on no more than 30 days' notice without penalty liability or payment on 30 days notice financial obligation, or lessany written or oral consulting agreement, contract or commitment with any independent contractor or consultant under which any benefits of which are contingent upon the occurrence of a transaction involving the Company of the nature of any of the transactions contemplated by this Agreement;
(b) any agreement of indemnification or any guaranty other than purchase orders for the purchase or sale any agreement of goods and/or services indemnification entered into by Target Corporation in connection with the sale or license of software products in the ordinary course of business; and any commitment of the Company to honor or make any payment under any such indemnification arrangement;
(c) any agreement, contract or commitment containing any covenant (i) limiting in any respect the right of the Company or any of its Subsidiaries to engage in any line of business or to compete with any person or (ii) granting any employment exclusive distribution rights;
(d) any agreement, non-competition contract or commitment currently in force relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's Subsidiaries;
(e) any joint marketing or development agreement currently in force under which the Company or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which the Company or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or any of its Subsidiaries and which may not be canceled without penalty upon notice of 90 days or less;
(f) any agreement, contract or commitment currently in force to license any loan third party to manufacture or credit agreementreproduce any Company product, security agreementservice or technology except as a distributor in the normal course of business; or
(g) any loan, indenturenote, mortgage, pledge indenture or other instrument evidencing indebtedness in excess of $100,000. Neither the Company nor any of its Subsidiaries, nor to the Company's knowledge any other party to any of the agreements, contracts or commitments to which the Company or any of its Subsidiaries is a party or by which any of them are bound that are required to be disclosed in the Company Disclosure Schedule pursuant to Section 3.15 or this Section 3.16 ("Company Contracts") is, as of ----------------- the date hereof, in breach, violation or default under (other than equipment purchases as a result of the insolvency of the Company), any Company Contract, except for breaches, violations or lease agreements entered into defaults that in the ordinary course aggregate would not have a Material Adverse Effect. Except as set froth in Section 3.16 of business)the Company disclosure Schedule, neither the Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any Company Contract in such a manner as would permit any other party to cancel or terminate such Company Contract, or would permit any sales representativeother party to seek material damages or other remedies (for any or all of such breaches, allianceviolations or defaults, partnership, joint venture, joint operating or similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentaggregate).
Appears in 1 contract
Sources: Merger Agreement (Oracle Corp /De/)
Agreements, Contracts and Commitments. Except as described in Schedule 2.17, neither Target Corporation Neither the Parent nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by by:
(i) any written or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into by Target Corporation in the ordinary course of business, or (iia) any employment or consulting agreement, non-competition agreementcontract or commitment with any officer or director level employee or member of the Parent’s Board of Directors;
(b) any agreement or plan, including, without limitation, any loan stock option plan, stock appreciation right plan or credit agreementstock purchase plan, security agreementany of the benefits of which will be increased, indentureor the vesting of the benefits of which will be accelerated, mortgage, pledge by the occurrence of any of the transactions contemplated by this Agreement or other instrument evidencing indebtedness the value of ay of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(other than equipment purchases c) any agreement of indemnification or lease agreements guaranty not entered into in the ordinary course of business), business other than indemnification agreements between the Parent or any sales representativeof its subsidiaries and any of its officers or directors;
(d) any agreement, alliancecontract or commitment containing any covenant limiting the freedom of the parent or any of its subsidiaries to engage in any line of business or compete with any person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture, venture or other business enterprise; or
(f) any material joint operating marketing or similar development agreement. The Target Corporation Neither the Parent nor any of its subsidiaries, nor to the Parent’s knowledge any other party to a Parent Contract as defined herein), has delivered to Acquiring Corporation a correct and complete copy breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the material terms and or conditions of each oral agreement any of the agreements, contracts or commitments to which the Parent or any of its subsidiaries is a party or by which it is bound of the type described in clauses (a) through (f) above (any such agreement, contract or commitment is referred to herein as a “PARENT CONTRACT”) in Schedule 2.17. With respect such a manner as would permit any other party to each cancel or terminate any such agreement: (A) the agreement is Enforceable against Target Corporation Parent Contract, or its Subsidiarieswould permit any other party seek damages, as the case may be; (B) which would be reasonably likely to be material to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitmentParent.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Omega Ventures Inc)
Agreements, Contracts and Commitments. Except as described set forth in Schedule 2.17Section 4.18 of the Company Schedule, as of the date of this Agreement, neither Target Corporation Company nor any Subsidiary of Target Corporation its subsidiaries is a party to or is bound by:
(a) any employment or consulting agreement, Contract or commitment with any officer, director or employee of Company or any of its subsidiaries (whether on a full-time, part-time or other basis), other than those that are terminable by Company or any of its subsidiaries at will without liability or financial obligation to Company (other than the obligation to pay accrued but unpaid salary and earned but unpaid leave following an employee’s termination of employment);
(b) any agreement of indemnification by the Company or its subsidiaries or any power of attorney or guaranty other than any agreement of indemnification entered into in connection with the sale of products or license of technology in the Ordinary Course of Business;
(c) any agreement, contract or commitment containing any covenant limiting the right of Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(d) any agreement, contract or commitment relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of assets not in the Ordinary Course of Business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company’s subsidiaries;
(e) any dealer, distributor, joint marketing or development agreement under which Company or any of its subsidiaries have continuing obligations to jointly market any product, technology or service, or any agreement pursuant to which Company or any of its subsidiaries have continuing obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries;
(f) any agreement, contract or commitment to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment to resell or re-distribute any Company products, service or technology;
(g) any agreement relating to the licensing of source code, other than the licensing of sample source code as such term is used in the Company’s user licensing agreements;
(h) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Company or any of its subsidiaries or extension of credit (other than customer accounts receivable owing to Company or any of its subsidiaries in the Ordinary Course of Business and payable or dischargeable in accordance with customary trade terms);
(i) any written agreement (or oral contract, group of related agreements) for the lease of personal property to or from any person that involves aggregate annual payments of more than $10,000;
(j) any agreement (or commitment which involves or may involve aggregate future payments (whether in payment group of a debt, as a result of a guarantee or indemnification, for goods or services or otherwiserelated agreements) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $25,000;
(k) any agreement for the purchase of supplies, components, products or services entered into by Target Corporation from single source suppliers, custom manufacturers or subcontractors that involves aggregate annual payments of more than $25,000;
(l) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in or under which a security interest has been imposed on any of its assets, tangible or intangible;
(m) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees;
(n) any agreement under which the consequences of a default or termination could have a Material Adverse Effect;
(o) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(p) any agreement pursuant to which Company is obligated to provide maintenance, support or training for its products, other than in the ordinary course Ordinary Course of business, or Business;
(iiq) any employment agreement, non-competition agreement, agreement obligating the Company or any loan or credit agreement, security agreement, indenture, mortgage, pledge or other instrument evidencing indebtedness (of its subsidiaries to deliver future product enhancements other than equipment purchases in the Ordinary Course of Business or lease containing a “most favored nation” pricing clause;
(r) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $25,000 or which is expected to continue for more than one (1) year from the date hereof, other than agreements relating to the sale and licensing of Company’s products, services or technology, and licenses to use third party software entered into in the ordinary course Ordinary Course of business), or any sales representative, alliance, partnership, joint venture, joint operating or similar agreementBusiness. The Target Corporation Company has delivered or made available to Acquiring Corporation Parent a correct and complete copy of each written agreement required to be listed in Section 4.18 of the Company Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred required to be listed in Schedule 2.17Section 4.18 of the Company Schedule. With respect to each such agreement, and with such other exceptions as would not have, individually or in the aggregate, a Company Material Adverse Effect: (A) the agreement is Enforceable against Target Corporation or its Subsidiarieslegal, as the case may bevalid, binding, enforceable, and in full force and effect in all respects with regard to Company; (B) neither Company nor, to the Knowledge of Target CorporationCompany’s Knowledge, the agreement will continue to be Enforceable against the any other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation party is in breach under any material provision of or is not in default in any material respect under the terms of, any such contract, agreement or commitment described in Schedule 2.17default, and to the Knowledge of Target Corporation, no event has occurred and no condition exists whichoccurred, after which with notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party is in breach of or in default under the terms of any such contract, agreement or commitmentdefault, or permit termination, modification, or acceleration, under the agreement; and (EC) neither Company nor, to Company’s Knowledge any other party to the Knowledge of Target Corporation, no party agreement has repudiated any provision of the agreement; (D) there are no disputes or forbearance programs in effect; (E) the Company does not have any such contractreason to believe that the service called for thereunder cannot be supplied in accordance with its terms; (F) the validity, agreement effectiveness and continuation will not be materially adversely affected by the Merger and the transactions contemplated by this Agreement; and (G) no party has any defense, set off or commitmentcounterclaim or has exercised any option granted to it to cancel, terminate or shorten the term. Section 4.18 of the Company Schedule contains a true, complete and correct list of each bid or proposal (or series of related bids or proposals) currently being considered, promoted or negotiated by the Company which, if accepted, would be required to be listed in Section 4.18 of the Company Schedule if effective as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Vignette Corp)