No Changes. Since December 31, 2013, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereof, there has not been, occurred or arisen any: (a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices; (b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this Agreement; (c) payment, discharge, waiver or satisfaction of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet; (d) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company (whether or not covered by insurance); (e) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor disputes or claims of wrongful discharge or other unlawful employment or labor practice or action by the Company; (f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the Company; (g) making of or change in any Tax election, adoption of or change in any Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment; (h) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan; (i) (i) termination or extension, or material amendment, waiver or modification of the terms, of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or default; (j) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any Lien in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements; (k) loan by the Company to any Person, incurring by the Company of any Indebtedness for borrowed money, guaranteeing by the Company of any Indebtedness for borrowed money, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees for travel and business expenses in the ordinary course of business consistent with past practices; (l) waiver or release of any material right or claim of the Company; (m) commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs; (n) issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options; (o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights; (p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developed, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices); (q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company; (r) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement; (s) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect of any character that has had or is reasonably likely to have a Material Adverse Effect with respect to the Company; or
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
No Changes. Since December 31Except as provided in Section 2.10 of the Disclosure Schedule, 2013, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereofsince the Balance Sheet Date through the date of this Agreement, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and business, consistent with past practices, as conducted on the Balance Sheet Date;
(b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this Agreementof the Company;
(c) third party capital expenditure or commitment by the Company exceeding $50,000 in the aggregate;
(d) payment, discharge, waiver discharge or satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than (i) payments, discharges or satisfactions in the ordinary course of business business, consistent with past practices, of liabilities reflected or reserved against in the Current Balance SheetSheet or (ii) incurred in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;
(de) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a any material customer of the Company (whether or not covered by insurance);
(ef) employment dispute, including claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union regarding labor disputes trouble or claims claim of wrongful discharge or other unlawful employment or labor practice or action by with respect to the Company;
(fg) adoption of or change in accounting policies methods or procedures practices (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the Company;
(gh) making of or change in any Tax election, adoption of or change in any Tax (as defined in Section 2.11) election or any Tax accounting method, entering into any closing agreement with respect to Taxes, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Returnassessment, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessment;
(hi) material revaluation by the Company of any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Common Stock, or any split, combination or reclassification in respect of any shares of Company Capital Common Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Common Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(ik) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (iwhether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(l) entry into a Material Contract, termination or extensionextension of a Material Contract, or a material amendment, waiver amendment or modification of the terms, terms of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaultContract;
(jm) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany outside of the ordinary course of business, includingconsistent with past practices, but not limited to, including the sale of any accounts receivable of the Company, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(kn) loan by the Company to any Personperson or entity, incurring or purchase by the Company of any Indebtedness debt securities of any person or entity, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(o) incurrence by the Company of any indebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any Indebtedness for borrowed moneyindebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(lp) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any material account receivable of the Company;
(mq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairsCompany;
(nr) notice of any claim or potential claim of ownership, interest or right by any person other than the Company or a Company Subsidiary of the Company Intellectual Property (as defined in Section 2.14 hereof) or of infringement by the Company of any other person’s Intellectual Property Rights (as defined in Section 2.14 hereof);
(s) issuance or sale, or Contract contract or undertaking agreement to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Common Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing except for issuances of options under the Plan and issuances of Company OptionsCommon Stock upon the exercise of options issued under the Plan;
(ot) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threatfollowing, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement in connection with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business business, consistent with past practices that do not materially differ in substance from practice, on the Standard Form Agreements)Company’s standard form without material modification: (i) sale or license of any Company Intellectual Property to, or execution, material modification or material amendment of any agreement with respect to any Company Intellectual Property with, any person or entity, (ii) purchase or exclusive license of any third-party Intellectual Property Rights from, or Technology execution, material modification or execution material amendment of any agreement with respect to the any third-party Intellectual Property Rights with, any person or Technology of any Person (other than Shrink‑Wrap Software)entity, (iii) agreement agreement, or material modification or material amendment of an existing agreement, with respect to the development of any Content & Technology or Intellectual Property Rights or Technology Rights, with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) material change in pricing or royalties set or charged by the Company to its customers or licensees licensees, or in pricing or royalties set or charged by Persons persons who have licensed Content & Technology or Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(ru) (i) increase in agreement or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company material modification to any Employeesagreement pursuant to which any other party was granted marketing, (ii) declarationdistribution, payment development, manufacturing or commitment or obligation similar rights of any kind for the payment (whether in cash type or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case scope with respect to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreementProduct;
(sv) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect with respect to Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company; or
(x) agreement by the Company to do any of the things described in the preceding clauses (a) through (w) of this Section 2.10 (other than the execution of this Agreement and the Related Agreements to which the Company is a party).
Appears in 1 contract
No Changes. Since December 31Except in compliance with this Agreement, 2013since the Current Balance Sheet Date (or, except as expressly permitted underwith respect to subsections (c) and (d) below, required or specifically consented to by Parent pursuant to Section 4.1 between the Current Balance Sheet Date and the date hereof), there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this Agreementcertificate of incorporation or bylaws of the Company;
(c) capital expenditure by the Company exceeding $25,000 individually or $75,000 in the aggregate;
(d) payment, dischargedischarge or satisfaction, waiver in any amount in excess of $25,000 in any one case, or satisfaction $50,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against obligations set forth in the Current Balance SheetSheet or Disclosure Schedule;
(de) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company (whether or not covered by insurance);
(ef) employment dispute, including but not limited to, claims or matters raised by any individual, Governmental Entity, individuals or any workers’ ' representative organization, bargaining unit or union regarding labor disputes trouble or claims claim of wrongful discharge or other unlawful employment or labor practice or action by the Company;
(f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by with respect to the Company;
(g) making change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;
(h) change in any material election in respect of Taxes (as defined below), adoption or change in any Tax election, adoption of or change in any Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement method in respect of Taxes, filing agreement or settlement of any amended Tax Returnclaim or assessment in respect of Taxes, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessmentassessment in respect of Taxes;
(hi) revaluation by the Company of any of its assets (whether tangible or intangible);
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or or, except in accordance with the Company's certificate of incorporation, any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options Options, Company Unvested Common Stock or restricted stock awards granted under the PlanCompany Warrants;
(ik) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (iwhether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(l) material agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, or material amendment, waiver amendment or modification of the terms, terms of any Material Contract not required agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by the terms thereof which it or (ii) breach any of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaultits assets are bound;
(jm) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(kn) loan by the Company to any Personperson or entity, incurring by the Company of any Indebtedness for borrowed moneyindebtedness, guaranteeing by the Company of any Indebtedness for borrowed moneyindebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business consistent with past practices;
(lo) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mp) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or to the Knowledge of the Company, any reasonable basis for any of the foregoing;
(nq) notice of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in SECTION 2.13 hereof) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in SECTION 2.13 hereof);
(r) issuance or sale, or Contract contract or undertaking agreement to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiariesStock, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing except for issuances of Company OptionsCapital Stock upon the exercise of options issued under the Plans or upon the exercise of Company Warrants;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP Intellectual Property or Company Products execution, modification or execution amendment of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person (other than non‑exclusive licenses person or entity or with respect to the Intellectual Property of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements)any person or entity, or (ii) purchase or exclusive license of any Intellectual Property Rights or Technology execution, modification or execution amendment of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software)person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices)Company;
(qt) hiring agreement or termination modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any employee of the Company, promotion, demotion type or other change scope with respect to the employment status any products or title of any office of the Company or resignation or removal of any director technology of the Company;
(ru) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(s) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect with respect to Effect;
(v) lease, license, sublease or other occupancy of any Leased Real Property by the Company; or
(w) agreement or commitment by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (a) through (v) of this SECTION 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Brocade Communications Systems Inc)
No Changes. Since December 31, 2013the Balance Sheet Date, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 hereof, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this Agreementor organizational documents of any Subsidiary;
(c) expenditure, transaction or commitment exceeding $25,000 individually or $75,000 in the aggregate or any commitment or transaction of the type described in Section 2.13 hereof in any case by the Company or any of its Subsidiaries;
(d) payment, discharge, waiver or satisfaction satisfaction, in any amount in excess of $25,000 in any one case, or $75,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(de) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(ef) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor disputes trouble or claims claim of wrongful discharge or other unlawful employment or labor practice or action by with respect to the CompanyCompany or any of its Subsidiaries;
(fg) adoption of or change in accounting policies methods or procedures practices (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP;
(gh) making of or change in any Tax election, adoption of or change in any Tax accounting methodmethod or material Tax election, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, filing settlement of any amended Tax Returnclaim or assessment, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessment;
(hi) revaluation by the Company or any of its Subsidiaries of any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockStock or the capital stock of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital StockStock or the capital stock of any Subsidiary, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital StockStock or the capital stock of any Subsidiary, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(ik) material increase in or other change to the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of their respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (iwhether in cash, equity or other property) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus or other additional salary or compensation to any such person;
(l) any termination or extension, or material amendmentwaiver, waiver amendment or modification of the terms, terms of any Material Contract not required agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements), license or commitment to which the Company or any of its Subsidiaries is a party or by the terms thereof which it or (ii) breach any of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaulttheir respective assets are bound;
(jm) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany or any of its Subsidiaries, including, but not limited to, including the sale of any accounts receivable of the CompanyCompany or any of its Subsidiaries, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(kn) material loan by the Company or any of its Subsidiaries to any Person, incurring or purchase by the Company or any of any Indebtedness for borrowed money, guaranteeing by the Company of any Indebtedness for borrowed money, issuance or sale its Subsidiaries of any debt securities of any Person or amendment to the Company or guaranteeing terms of any debt securities of othersoutstanding loan agreement, except for advances to Employees employees for travel and business expenses in the ordinary course of business consistent with past practices;
(lo) incurring by the Company or any of its Subsidiaries of any material indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(p) waiver or release of any material right or claim of the CompanyCompany or any of its Subsidiaries, including any waiver, release or other compromise of any account receivable of the Company or any of its Subsidiaries;
(mq) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its affairsSubsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(nr) issuance written notice of any claim or salepotential claim of ownership, interest or right by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property;
(s) issuance, grant, delivery, sale or purchase, or Contract proposal, contract or undertaking agreement to issue issue, grant, deliver, sell or sellpurchase, by the Company or any of its subsidiaries Subsidiaries, of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiariesSubsidiaries, or (ii) any securitiessubscriptions, warrants, options options, rights or rights securities to purchase acquire any of the foregoing, except, except for issuances of Company Capital Stock upon the exercise of Company Options or Company Warrants or the conversion of Company Preferred Stock or the grant of options to purchase Company Common Stock to employees of the Company under the Plan in either case, in accordance the ordinary course of business and consistent with agreements evidencing Company Optionspast practice;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(pt) (i) sale sale, lease, license or exclusive license transfer of any Company IP Intellectual Property or Company Products execution, modification or execution amendment of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person (other than non‑exclusive licenses or with respect to the Intellectual Property of the Company Products to end‑users pursuant to agreements that have been entered into any Person except in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements)practice, or (ii) purchase or exclusive license of any Intellectual Property Rights or Technology execution, modification or execution amendment of any agreement with respect to the Intellectual Property Rights or Technology of any Person (Person, other than Shrink‑Wrap Software)non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which party, other than non-exclusive, end-user licenses for the Company does not own all right, title and interest Company’s products entered into in and to the Intellectual Property Rights or Technology developedordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made except in the ordinary course of business and consistent with past practices)practice;
(qu) hiring agreement or termination modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any employee of the Company, promotion, demotion type or other change scope with respect to the employment status any products or title of any office technology of the Company or resignation or removal any of any director of the Companyits Subsidiaries;
(rv) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(s) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect with respect Effect;
(w) purchase or sale of any interest in real property, granting of any security interest in any real property or lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its Subsidiaries;
(x) acquisition by the Company or any of its Subsidiaries or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Companybusiness of the Company or any of its Subsidiaries;
(y) grant by the Company or any of its Subsidiaries of any severance, change in control or termination pay (in cash or otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the Disclosure Schedule;
(z) adoption, amendment or termination of any Company Employee Plan, execution or amendment of any Employee Agreement, or payment or agreement by the Company or any of its Subsidiaries to pay any bonus or special remuneration to any director or Employee, or increase or modify the salaries, wage rates or other compensation (including any equity-based compensation) of any Employee, other than non-material increases in the ordinary course of business consistent with past practice;
(aa) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(bb) hiring, promotion, demotion or termination or other change to the employment status or title of any employees; or
(cc) agreement by the Company or any of its Subsidiaries, or any officer or employees on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (bb) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement, any Related Agreements and any Employment Related Agreements).
Appears in 1 contract
No Changes. Since December 31, 2013, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereofthe Balance Sheet Date, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except as expressly or other organizational documents other than the Charter Amendment contemplated by this Agreement;
(c) capital expenditure or commitment by the Company exceeding $100,000 individually or $200,000 in the aggregate;
(d) payment, dischargedischarge or satisfaction, waiver in any amount in excess of $50,000 in any one case, or satisfaction $100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)Liabilities of the Company, other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of liabilities the Company reflected or reserved against in the Current Balance Sheet;
(de) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company (whether or not covered by insurance);
(ef) employment dispute, including including, claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union regarding labor disputes trouble or claims claim of wrongful discharge or other unlawful employment or labor practice or action by the Company;
(f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by with respect to the Company;
(g) making change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;
(h) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Returnassessment, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessment;
(hi) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(ik) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (iwhether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person other than in the ordinary course of business consistent with past practices;
(l) Contract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, or material amendment, waiver amendment or modification of the terms, terms of any Material Contract not required to which the Company is a party or by which it or any of its assets are bound, except in the terms thereof or (ii) breach ordinary course of or default under any Material Contract or the occurrence of any event or condition which, business consistent with the giving of notice or the passage of time or both, could constitute such a breach or defaultpast practices;
(jm) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany outside of the ordinary course of business, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of properties;
(n) loan by the Company Products to end-users pursuant any person or entity, or purchase by the Company of any debt securities of any person or entity except for advances to agreements that have been entered into employees for travel and business expenses in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementspractices;
(ko) loan by the Company to any Person, incurring by the Company of any Indebtedness for borrowed moneyindebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any Indebtedness for borrowed moneyindebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business consistent with past practicespractice;
(lp) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mq) commencement or settlement of any Action by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit Action or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(nr) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or Contract contract or undertaking agreement to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiariesStock, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing except for issuances of Company OptionsCommon Stock upon the exercise of Company Options issued under the Plan;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or exclusive license of any Company IP Intellectual Property or Company Products execution, modification or execution amendment of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person person or entity or with respect to the Intellectual Property of any person or entity, or (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into ii) except in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements)business, (ii) purchase or exclusive license of any Intellectual Property Rights or Technology execution, modification or execution amendment of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software)person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(ru) (i) increase in agreement or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company modification to any Employeesagreement pursuant to which any other party was granted marketing, (ii) declarationdistribution, payment development, manufacturing or commitment or obligation similar rights of any kind for the payment (whether in cash type or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case scope with respect to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreementIntellectual Property;
(sv) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect with respect to Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the Disclosure Schedule; or
(x) agreement by the Company; or, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (a) through (w) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
No Changes. Since December 31, 2013, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereof2002, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practicespractice;
(b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this AgreementCertificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 in the aggregate;
(d) payment, dischargedischarge or satisfaction, waiver in any amount in excess of $5,000 in any one case, or satisfaction $10,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(de) destruction of, damage to, to or loss of any material assets (whether tangible or intangible), material business or loss of a any material customer of the Company (whether or not covered by insurance);
(ef) employment dispute, including claims labor trouble or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor disputes or claims claim of wrongful discharge or other unlawful employment or labor practice or action by the Companyaction;
(fg) adoption of or material change in accounting policies methods or procedures practices (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the CompanyCompany other than as required by GAAP;
(gh) making change in any election in respect of Taxes (as defined below), adoption or change in any Tax election, adoption of or change in any Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement method in respect of Taxes, filing agreement or settlement of any amended Tax Returnclaim or assessment in respect of Taxes, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessmentassessment in respect of Taxes;
(hi) revaluation by the Company of any of its assets;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any share of Company Capital Stockcapital stock, or any split, combination or reclassification in respect of any shares share of Company Capital Stockcapital stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares any share of Company Capital Stockcapital stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares share of Company Capital Stock capital stock (or options, warrants options or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(ik) increase in the salary or other compensation (icash, equity or otherwise) payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, termination payment, bonus or other additional salary or compensation (cash, equity or otherwise) to any such person;
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound or any termination, extension, or material amendment, waiver amendment or modification of the terms, terms of any Material Contract not required agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by the terms thereof which it or (ii) breach any of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaultits assets are bound;
(jm) sale, lease, sublease, license lease or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, the sale of any accounts receivable of the Company, Company or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(kn) loan by the Company to any Personperson or entity, incurring by the Company of any Indebtedness for borrowed moneyindebtedness, guaranteeing by the Company of any Indebtedness for borrowed moneyindebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business consistent with past practicespractice that are set forth on Section 2.9(n) of the Disclosure Schedule;
(lo) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mp) the commencement, settlement, notice or, to the Knowledge of the Company, or threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(nq) notice to the Company or its directors of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 2.13 below);
(r) issuance or sale, or Contract or undertaking contract to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible intocapital stock, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(os) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP Intellectual Property or Company Products or execution entering into of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person (other than non‑exclusive licenses person or entity or with respect to the Intellectual Property of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), any person or entity; (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution entering into of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software)person or entity, (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices)Company;
(qt) hiring agreement or termination modification to any agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any employee of the Company, promotion, demotion type or other change scope with respect to the employment status any products or title of any office of the Company or resignation or removal of any director technology of the Company;
(ru) (i) increase in hiring or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation termination of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution employees of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(sv) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely to have a Material Adverse Effect with respect to on the Company; or
(w) agreement by the Company or any officer or employees on behalf of the Company to do any of the things described in the preceding clauses (a) through (v) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Xicor Inc)
No Changes. Since December 31September 30, 2013, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereof2000, there has not been, occurred ---------- or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this AgreementArticles of Incorporation or Bylaws of the Company;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $25,000 in the aggregate;
(d) payment, dischargedischarge or satisfaction, waiver in any amount in excess of $10,000 in any one case, or satisfaction $25,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(de) destruction of, damage to, to or loss of any material assets (whether tangible or intangible), material business of the Company or loss of a material any customer (whether direct or indirect) accounting for more than 10% of gross revenue of the Company on a trailing twelve month basis (in each case, whether or not covered by insurance);
(ef) employment dispute, including claims labor trouble or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor disputes or claims claim of wrongful discharge or other unlawful employment or labor practice or action by the Companyaction;
(fg) adoption of or change in accounting policies methods or procedures practices (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the CompanyCompany other than as required by GAAP;
(gh) making change in any election in respect of Taxes (as defined below), adoption or change in any Tax election, adoption of or change in any Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement method in respect of Taxes, filing agreement or settlement of any amended Tax Returnclaim or assessment in respect of Taxes, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessmentassessment in respect of Taxes;
(hi) revaluation by the Company of any of its assets;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stockcommon stock, or any split, combination or reclassification in respect of any shares of Company Capital Common Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Common Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Common Stock (or options, warrants options or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Planand distributions to Stockholders for income tax purposes pursuant to Section 5.1(f);
(ik) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(il) termination any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, or material amendment, waiver amendment or modification of the terms, terms of any Material Contract not required agreement, contract, covenant, instrument, lease, license or commitment to which the Company is party or by which it or any of its assets are bound, except those entered into in the terms thereof or (ii) breach ordinary course of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaultbusiness;
(jm) sale, lease, sublease, license lease or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, the sale of any accounts receivable of the Company, Company or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the properties, except for Company Products to end-users pursuant to agreements that have been entered into Intellectual Property licensed in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsbusiness;
(kn) loan by the Company to any Personperson or entity, incurring by the Company of any Indebtedness for borrowed moneyindebtedness, guaranteeing by the Company of any Indebtedness for borrowed moneyindebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business consistent with past practices;
(lo) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mp) the commencement, settlement, notice or, to the Knowledge of the Company, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
(nq) notice to the Company, or to the knowledge of the Company and any Stockholder, director or officer of the Company, of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.12 below);
(r) issuance or sale, or Contract or undertaking contract to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares Common Stock, any other form of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares Common Stock, any other form of capital stock of any of its subsidiariesstock, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(os) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than in the Company ordinary course of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) business, consistent with past practice (i) sale or exclusive license of any Company IP Intellectual Property or Company Products or execution entering into of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person (other than non‑exclusive licenses person or entity or with respect to the Intellectual Property of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements)any person or entity, (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution entering into of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software)person or entity, (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices)Company;
(qt) hiring agreement or termination modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any employee of the Company, promotion, demotion type or other change scope with respect to the employment status any products or title of any office of the Company or resignation or removal of any director technology of the Company;
(ru) (i) increase in hiring or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation termination of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution employees of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(sv) any action to extend the post‑termination exercise period knowledge of any Company Options or any similar equity awards; (t) circumstance, changethe Stockholders, event or effect condition of any character type that has had or is reasonably likely to have a Material Adverse Effect with respect to on the Company; or
(w) agreement by the Company or any officer or employees on behalf of the Company to do any of the things described in the preceding clauses (a) through (v) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Lantronix)
No Changes. Since December 31, 2013the Balance Sheet Date, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereofhereof or as set forth in Section 2.9 of the Disclosure Schedule, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this Agreement;
(c) payment, discharge, waiver or satisfaction of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(d) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company (whether or not covered by insurance);
(e) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor disputes or claims of wrongful discharge or other unlawful employment or labor practice or action by the Company;
(f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the Company;
(g) making of or change in any Tax election, adoption of or change in any Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment;
(h) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the PlanPlans;
(i) (i) termination or extension, or material amendment, waiver or modification of the terms, of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or default;
(j) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any Lien in such material assets or material properties other than non-exclusive licenses of the Company Products (as defined below) to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form AgreementsAgreements (as defined below);
(k) loan by the Company to any Person, incurring by the Company of any Indebtedness for borrowed money, guaranteeing by the Company of any Indebtedness for borrowed money, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees for travel and business expenses in the ordinary course of business consistent with past practices;
(l) waiver or release of any material right or claim of the Company;
(m) commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs;
(n) issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiariesStock, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP (as defined below) or of infringement by the Company of any other Person’s Intellectual Property RightsRights (as defined below);
(p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap SoftwareShrink‑Wrap), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(r) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(s) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; ;
(t) circumstance, change, event or effect of any character that has had or is reasonably likely to have a Material Adverse Effect with respect to the Company; or
(u) agreement by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (a) through (t) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
No Changes. Since December March 31, 20131999, except as expressly permitted under, required or specifically consented to by Parent pursuant to disclosed in Section 4.1 hereof2.9 of the Disclosure Schedule, there has not been, occurred or arisen any:
(a) material transaction by the Company or the Subsidiary except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments capital expenditure or changes to commitment by the Charter Documents except as expressly contemplated by this AgreementCompany or the Subsidiary exceeding $25,000 individually or $100,000 in the aggregate;
(c) payment, dischargedischarge or satisfaction, waiver in any amount in excess of $25,000 in any one case, or satisfaction $100,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance SheetSheet or arising after the date thereof;
(d) destruction of, material damage to, to or the loss of any material assets (whether tangible or intangible)assets, material business or loss of a material customer of the Company or the Subsidiary (whether or not covered by insurance);
(e) employment dispute, including claims collective work stoppage or matters raised by any individual, Governmental Entity, labor strike or any workers’ representative organization, bargaining unit or union regarding labor disputes or claims claim of wrongful discharge or other unlawful employment or labor practice or action by the Companyaction;
(f) adoption of or change in accounting policies methods or procedures practices (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the CompanyCompany or the Subsidiary other than as required by GAAP;
(g) making change in any material election in respect of Taxes (as defined below), adoption or change in any Tax election, adoption of or change in any Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement method in respect of Taxes, filing agreement or settlement of any amended Tax Returnclaim or assessment in respect of Taxes, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessmentassessment in respect of Taxes;
(h) revaluation by the Company or the Subsidiary of any of their respective assets;
(i) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, Stock or any split, combination or reclassification in respect of any shares of Company Capital Stock, Stock or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or by the Subsidiary of Subsidiary Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(i) (i) termination or extension, or material amendment, waiver or modification of the terms, of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaultCompany Warrants;
(j) increase in the salary or other compensation payable or to become payable by the Company or the Subsidiary to any of its officers, directors, employees or advisors (other than, in the case of employees who are not officers or directors, increases in salary in the ordinary course consistent with past practice that do not exceed $5,000 per year), or the declaration, payment or commitment or obligation of any kind for the payment, by the Company or the Subsidiary, of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(k) other than those entered into in the ordinary course of business consistent with past practice, any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or the Subsidiary is a party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification the terms of any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or Subsidiary is a party or by which they or any of their assets are bound;
(l) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, Company or the sale of any accounts receivable of the Company, Subsidiary or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(km) loan by the Company or the Subsidiary to any Personperson or entity, incurring by the Company or the Subsidiary of any Indebtedness for borrowed moneyindebtedness, guaranteeing by the Company or the Subsidiary of any Indebtedness for borrowed moneyindebtedness, issuance or sale of any debt securities of the Company or the Subsidiary or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business consistent with past practices;
(ln) waiver or release of any material right or claim of the Company;
(m) commencementCompany or the Subsidiary, settlement, notice or, to the Knowledge of the Company, threat including any write-off or other compromise of any lawsuit or proceeding or other investigation against account receivable of the Company or its affairs;
(n) issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company OptionsSubsidiary;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developed, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(r) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(s) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely to have a Material Adverse Effect with respect to Effect; or
(p) agreement by the Company; or, the Subsidiary or any officer or employees on behalf of the Company or the Subsidiary to do any of the things described in the preceding clauses (a) through (u) of this SECTION 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Probusiness Services Inc)
No Changes. Since December 31, 20132015, and except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereofdisclosed in the Disclosure Schedule, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except of the Company other than as expressly contemplated by this Agreement;
(c) capital expenditure or commitment by the Company exceeding $25,000 in the aggregate;
(d) payment, discharge, waiver discharge or satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetbusiness;
(de) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company (whether or not covered by insurance);
(ef) material employment dispute, including claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union regarding labor disputes trouble or claims claim of wrongful discharge or other unlawful employment or labor practice or action by the Company;
(f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by with respect to the Company;
(g) making other than in the ordinary course of or business, change in accounting methods or practices (including any Tax election, change in depreciation or amortization policies or rates) by the Company other than as required by GAAP or by Law;
(h) adoption of or change in any material Tax election or, other than in the ordinary course of business, any Tax accounting method, entering into any closing agreement with respect to Taxes, settlement or compromise of any material Tax claim or assessment, extension or waiver of the limitation period applicable to any Tax claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended material Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment;
(hi) revaluation by the Company of any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or Accounts Receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(i) hiring or termination of any employee or individual consultant of the Company, other than with respect to non-officer employees and individual consultants in the ordinary course of business, (ii) promotion, demotion or other change to the employment status or title of any officer of the Company or (iii) resignation or removal of any director of the Company;
(l) (i) increase in the salary or other compensation (including equity based compensation whether payable in cash, securities or otherwise) payable or to become payable by the Company to any of its officers, directors, employees, individual consultants or advisors, other than with respect to non-officer employees and individual consultants in the ordinary course of business or (ii) the declaration, adoption, agreement, contract, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other extraordinary compensation to any such Person;
(m) agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, or material amendment, waiver amendment or modification of the terms, terms of any Material Contract not required agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, other than agreements, contracts, covenants, instruments, leases, licenses or commitments entered into in the terms thereof or (ii) breach ordinary course of or default under any Material Contract or the occurrence of any event or condition whichbusiness, consistent with the giving of notice or the passage of time or both, could constitute such a breach or defaultpast practice;
(jn) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany outside of the ordinary course of business, includingconsistent with past practices, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(ko) loan by the Company to any Person, incurring or purchase by the Company of any Indebtedness debt securities of any Person, except for borrowed moneyadvances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(p) incurrence by the Company of any Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any Indebtedness for borrowed moneyIndebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(lq) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any Accounts Receivable;
(mr) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or Company, its affairs, or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(ns) claims or matters raised by any individual, Governmental Authority, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company;
(t) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company of the Company Intellectual Property (as defined in Section 2.14 hereof) or of infringement by the Company of any other Person’s Intellectual Property Rights (as defined in Section 2.14 hereof);
(u) issuance or sale, or Contract contract or undertaking agreement to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Common Stock, Company Preferred Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock, Company Preferred Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing except for issuances of Company OptionsCommon Stock upon the exercise of options issued under the Plan;
(oi) receipt by except standard end user licenses and software-as-a-service agreements entered into in the Company ordinary course of written noticebusiness, consistent with past practices, sale, lease, license or transfer to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP Intellectual Property or Company Products execution, modification or execution amendment of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person (other than non‑exclusive licenses or with respect to the Intellectual Property Rights of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements)any Person, (ii) purchase or exclusive license of any Intellectual Property Rights or Technology execution, modification or execution amendment of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software)Person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(rw) (i) increase in agreement or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company modification to any Employeesagreement pursuant to which any other party was granted marketing, (ii) declarationdistribution, payment development, manufacturing or commitment or obligation similar rights of any kind for the payment (whether in cash type or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case scope with respect to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreementProduct;
(sx) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect with respect to Effect;
(y) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company; or
(z) agreement by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (a) through (y) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
Sources: Merger Agreement
No Changes. Since December 31Except as set forth in Schedule 2.9 of the Disclosure Schedule, 2013since the date of the balance sheet included in the Company interim financials, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereofand through the date of this Agreement, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents practices and except as expressly contemplated by this Agreement;
(b) amendments or changes to the Articles of Organization or Bylaws of the Company, except for filing of a Certificate of Designation, Preferences and Rights to establish and authorize the Series D Preferred Stock;
(c) payment, discharge, waiver capital expenditure or satisfaction capital commitment by the Company of more than $25,000 in any claim, liability, right individual case or obligation $50,000 in the aggregate (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payments, discharges or satisfactions commitments to pay expenses incurred in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconnection with this transaction);
(d) destruction of, damage to, to or loss of any material assets (whether tangible or intangible)assets, material business or loss of a material customer of the Company (whether or not covered by insurance);
(e) employment disputework stoppage, including claims labor strike or matters raised by any individual, Governmental Entityother labor trouble, or any workers’ representative organizationmaterial action, bargaining unit suit, claim, labor dispute or union regarding labor disputes grievance relating to any labor, safety or claims discrimination matter involving the Company, including, without limitation, charges of wrongful discharge or other unlawful employment labor practices or labor practice or action by the Companyactions;
(f) adoption of or change in accounting policies methods, principles or procedures practices (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the Company;
(g) making of or change revaluation in any Tax election, adoption of or change in any Tax accounting method, settlement or compromise material respect by the Company of any Tax claim of its assets, including, without limitation, writing down the value of capitalized inventory or assessment writing off notes or entering into any closing agreement in respect of Taxes, filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessmentaccounts receivable;
(h) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in with respect of to any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, purchase or other acquisition by the Company of any shares Company Capital Stock, other than repurchases of Company Capital Stock (or optionsfrom directors, warrants officers, employees, consultants or other rights convertible into, exercisable persons performing services for the Company pursuant to agreements under which the Company has the option to repurchase such shares at cost upon the termination of employment or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Planother services;
(i) (i) termination split, combination or extension, or material amendment, waiver or modification of the terms, reclassification of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaultCompany Capital Stock;
(j) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, including, but not limited to, the modification of any existing compensation or equity arrangements with such individuals (which modification may include the amendment of any vesting terms related to Company Options held by such individuals), or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person except for in the ordinary course of the Company's business or as the Company is obligated as of the date hereof;
(k) granting of any increase in severance or termination pay or entry into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of the Merger;
(l) material agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets is bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets is bound;
(m) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any Lien lien or security interest (except for those arising by operation of law and statute) in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into except in the ordinary course of business and consistent with past practices that ("Liabilities"), or such liens or interests which do not materially differ in substance from impair the Standard Form Agreementsvalue or use of such assets or properties;
(kn) loan by the Company to any Personperson or entity, incurring by the Company of any Indebtedness for borrowed moneyindebtedness, guaranteeing by the Company of any Indebtedness for borrowed moneyindebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(lo) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company (other than as required by GAAP);
(mp) commencement, settlement, commencement or notice or, to the Knowledge or threat of the Company, threat commencement of any lawsuit or proceeding against or other investigation against of the Company or its affairs;
(nq) except as set forth in Schedule 2.3(b) or as contemplated by this Agreement (including the issue of shares of Series D Preferred Stock for cash), issuance or sale, or Contract or undertaking to issue or sell, sale by the Company or of any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries Stock, or securities exchangeable, convertible intoor exercisable therefor, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(o) receipt by the Company of written notice, foregoing or to the Knowledge of the Company other notice or threat, any amendment of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developed, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Companyexisting equity arrangement;
(r) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(s) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely would be expected to have a Company Material Adverse Effect with respect to the CompanyEffect; or
(s) agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (s) (other than negotiations and other actions with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Zapworld Com)
No Changes. Since December 31Except as set forth on Section 4.9 of the Disclosure Letter, 2013, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereofsince the Balance Sheet Date, there has not been, occurred or arisen any:: 18
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except of the Company other than as expressly contemplated by this Agreement;
(b) capital expenditure or commitment by the Company exceeding $50,000 in the aggregate;
(c) payment, discharge, waiver discharge or satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business since the Balance Sheet Date;
(d) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company (whether or not covered by insurance);
(e) employment dispute, or receipt of written notice of any claim, or written threat of a claim, that the Company has violated any employment Laws, including any such claims or matters raised by any individual, Governmental Entity, Employee or any workers’ representative organization, bargaining unit or union regarding labor disputes trouble or claims claim of wrongful discharge or other unlawful employment or labor practice or action by with respect to the Company;
(f) adoption of or change in accounting policies methods or procedures practices (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the Company;
(g) making of or change in any Tax election, adoption of or change in any material Tax election or any Tax accounting method, entering into any agreement with a Governmental Authority with respect to Taxes, settlement or compromise of any Tax claim or assessment assessment, extension or entering into waiver of the limitation period applicable to any closing agreement in respect of Taxesmaterial Tax claim or assessment, or filing of any amended material Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment;
(h) revaluation by the Company of any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or Accounts Receivable;
(i) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(i) (i) termination or extension, or material amendment, waiver or modification of the terms, of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or default;
(j) hiring or termination of any Employee of the Company with a title of Senior Manager or above, request by the company that any Employee resign from the Company, promotion, demotion or other change to the employment status or title of any Employee of the Company with a title of Senior Manager or above or resignation or removal of any director of the Company, in each case, other than in the ordinary course of business;
(k) increase in the salary or other compensation (including any bonus or equity based compensation whether payable in cash, securities or otherwise) or fringe benefits, payable or to become payable by the Company to any of its officers, directors, employees, consultants, or advisors, other than increases to salaries or cash or equity incentive opportunities made in the ordinary course of business consistent with past practice;
(l) adoption of or entrance into by the Company any Contract for, or other commitment by the Company to pay, a severance payment or similar termination payment to any of its officers, directors, Employees, consultants, or advisors, other than in the ordinary course of business;
(m) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany outside of the ordinary course of business, including, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(kn) loan by the Company to any Person, incurring or purchase by the Company of any Indebtedness debt securities of any Person, except for borrowed moneyadvances to employees for travel and business expenses in the ordinary course of business;
(o) incurrence by the Company of any material Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any Indebtedness for borrowed moneyIndebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business consistent with past practicesbusiness;
(lp) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any Accounts Receivable;
(mq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or Company, its affairs;
(n) issuance or sale, or Contract or undertaking relating to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock businesses, properties or shares of capital stock of any of its subsidiaries or securities convertible intoassets, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase reasonable basis for any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(or) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership ownership, interest or right by any Person other than the Company of in or to the Company IP Intellectual Property or of infringement by the Company of any other Person’s Intellectual Property Rights;
(ps) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock or any securities, warrants, options or rights to purchase any of the foregoing;
(i) sale except for agreements with customers entered into in the ordinary course of business on the Company’s form of customer agreement, sale, lease, license or exclusive license transfer to any Person of any Company IP Intellectual Property or Company Products execution, modification or execution amendment of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person Person, (other than non‑exclusive ii) except for licenses of for Off the Company Products to end‑users pursuant to agreements that have been Shelf Software entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements)business, (ii) purchase or exclusive license of any Intellectual Property Rights or Technology execution, modification or execution amendment of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software)Person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(ru) (i) increase in agreement or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company modification to any Employeesagreement pursuant to which any other party was granted marketing, (ii) declarationdistribution, payment development, manufacturing or commitment or obligation similar rights of any kind for the payment (whether in cash type or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case scope with respect to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreementProduct;
(sv) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had had, or is could reasonably likely be expected to have have, a Company Material Adverse Effect with respect to Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company or any alteration, amendment, modification, violation or termination of any Lease Agreements; or
(x) agreement by the Company; or, or any officer on behalf of the Company, to do any of the things described in the preceding clauses (a) through (w) of this Section 4.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Yext, Inc.)
No Changes. Since December 31, 2013the Balance Sheet Date, except as expressly permitted underfor the execution and performance of this Agreement and the discussions, required or specifically consented to by Parent pursuant to Section 4.1 hereofnegotiations and transactions related thereto, the business of the Company has been conducted in the ordinary course of business, consistent with past practice and there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except of the Company or any of its subsidiaries other than as expressly contemplated by this Agreement;
(b) capital expenditure or commitment by the Company exceeding $50,000 individually or $200,000 in the aggregate;
(c) payment, discharge, waiver discharge or satisfaction of any individual claim, liability, right liability or obligation in excess of $50,000 (absolute, accrued, asserted or unasserted, contingent or otherwise)) of the Company, other than payments, discharges or satisfactions in the ordinary course of business business, consistent with past practices, of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;
(d) destruction of, material damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer ) of the Company or any of its subsidiaries (whether or not covered by insurance);
(e) employment labor dispute, including claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union regarding labor disputes trouble or claims claim of wrongful discharge or other unlawful employment or labor practice or action by with respect to the Company;
(f) adoption of or change in accounting policies methods or procedures practices (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the CompanyCompany other than as required by GAAP;
(g) making of or change in any Tax election, adoption of or change in any Tax election or any Tax accounting method, entering into any closing agreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, extension or waiver of the limitation period applicable to any material Tax claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment;
(h) revaluation by the Company or any of its subsidiaries of any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or Accounts Receivable (other than depreciation or amortization of any asset in the ordinary course of business consistent with past practices);
(i) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or the capital stock or other equity 105132706 v11 interests of any of the Company’s subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital StockStock or the capital stock or other equity interests of any of the Company’s subsidiaries, or any issuance issuance, granting or authorization of any issuance or granting of any other securities in respect of, in lieu of or in substitution for shares of Company Capital StockStock or the capital stock or other equity interests of any of the Company’s subsidiaries, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or the capital stock or other equity interests of any of the Company’s subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except other than Company Options approved by the Board of Directors of the Company and listed on Section 2.2(b) of the Disclosure Schedule or exercises of outstanding Company Options in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(i) (i) termination or extension, or material amendment, waiver or modification terms of the terms, of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaultunderlying option agreement and Plan;
(j) hiring or termination of any employee or consultant of the Company or promotion, demotion or other change to the employment status or title of any officer of the Company or resignation or removal of any director of the Company;
(k) increase in the salary or other compensation (including equity based compensation whether payable in cash, securities or otherwise) payable or to become payable by the Company to any of its respective officers, directors, consultants or employees, or the declaration, adoption, agreement, contract, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance or termination payment, bonus or other additional salary or compensation to any such Person, other than in the ordinary course of business (including the payment of bonuses or commissions to such persons in the ordinary course of business or normal increases in base cash compensation) or as required by applicable law or any applicable contractual arrangement in place as of the date of this Agreement;
(l) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany or any of its subsidiaries outside of the ordinary course of business, including, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any Lien security interest in such material assets or material properties properties, other than non-exclusive licenses Permitted Liens;
(m) extension of credit or any loan by the Company Products or any of its subsidiaries to end-users pursuant any Person, or purchase by the Company or any of its subsidiaries of any debt securities of any Person, except for advances to agreements that have been entered into employees for travel and business expenses and reimbursement of personal phone expenses, in each case in the ordinary course of business business, consistent with past practices that do not materially differ in substance from the Standard Form Agreementspractices;
(kn) loan incurrence by the Company or any of its subsidiaries of any Indebtedness, amendment of the terms of any outstanding Indebtedness (or any Contract evidencing such Indebtedness) to any Person, incurring by which the Company of any Indebtedness for borrowed moneyis a party, guaranteeing by the Company or any of its subsidiaries of any Indebtedness for borrowed moneyIndebtedness, issuance or sale of any debt securities of the Company or any of its subsidiaries, or guaranteeing of any Indebtedness or debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(lo) affirmative waiver or release of any material right or claim of the Company;
, including any write-off or other compromise of any Accounts Receivable; ▇▇▇▇▇▇▇▇▇ ▇▇▇ (m▇) commencement or settlement of any Legal Proceeding by the Company or any of its subsidiaries, the commencement, settlement, notice settlement or, to the Knowledge of the Company, written notice or threat of any lawsuit or lawsuit, proceeding or other investigation by or before a Governmental Authority against the Company or its affairs;
(n) issuance or saleCompany, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Optionstheir respective assets;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developed, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(r) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(s) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect of any character that has had or is reasonably likely to have a Material Adverse Effect with respect to the Company; or
Appears in 1 contract
Sources: Draft Agreement (Rovi Corp)
No Changes. Since December 31, 2013the Balance Sheet Date, except as expressly permitted under, required or specifically consented to by Parent pursuant to set forth in Section 4.1 hereof2.9 of the Disclosure Schedule, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this Agreementcertificate of incorporation or bylaws of the Company;
(c) capital expenditure or commitment by the Company exceeding $25,000 individually or $50,000 in the aggregate;
(d) payment, dischargedischarge or satisfaction, waiver in any amount in excess of $25,000 in any one case, or satisfaction $50,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business of liabilities liabilities: (i) reflected or reserved against in the Current Balance SheetSheet or (ii) incurred after the Balance Sheet Date in the ordinary course of business or in connection with the transactions contemplated by this Agreement;
(de) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company (whether or not covered by insurance);
(ef) employment dispute, including claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union regarding labor disputes trouble or claims claim of wrongful discharge or other unlawful employment or labor practice or action by the Company;
(f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by with respect to the Company;
(g) making change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;
(h) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Returnassessment, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessment;
(hi) revaluation by the Company of any of its material assets (whether tangible or intangible), including without limitation, writing down the value of material inventory or writing off material notes or accounts receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(ik) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (iwhether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(l) Material Contract or any termination, extension, or material amendment, waiver amendment or modification of the terms, terms of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaultContract;
(jm) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany outside of the ordinary course of business, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of properties;
(n) loan by the Company Products to end-users pursuant any person or entity, or purchase by the Company of any debt securities of any person or entity, except for advances to agreements that have been entered into employees for travel and business expenses in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementspractices;
(ko) loan by the Company to any Person, incurring by the Company of any Indebtedness for borrowed moneyIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any Indebtedness for borrowed moneyindebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees for travel and business expenses in the ordinary course of business consistent with past practices;
(lp) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairsCompany, or, to the Company’s Knowledge, any reasonable basis for any of the foregoing;
(nr) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other person’s Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or Contract contract or undertaking agreement to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiariesStock, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) except standard end user licenses entered into in the ordinary course of business, sale or exclusive license of any Company IP Intellectual Property or Company Products execution, modification or execution amendment of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person person or entity or with respect to the Intellectual Property of any person or entity, or (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into ii) except in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements)business, (ii) purchase or exclusive license of any Intellectual Property Rights or Technology execution, modification or execution amendment of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software)person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices)Company;
(qu) hiring agreement or termination modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any employee of the Company, promotion, demotion type or other change scope with respect to the employment status any products or title of any office of the Company or resignation or removal of any director technology of the Company;
(rv) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(s) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect with respect to Effect;
(w) lease, license, sublease or other occupancy of any Leased Real Property by the Company; or
(x) agreement by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (a) through (w) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
No Changes. Since December 31, 2013the Balance Sheet Date, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereofArticle V, the Company and each of its Subsidiaries has conducted its business in the ordinary course consistent with past practices and there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this AgreementDocuments;
(cb) payment, discharge, waiver or satisfaction satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business of or with respect to liabilities reflected or reserved against in the Current Balance SheetSheet or with respect to liabilities incurred in the ordinary course of business since the Balance Sheet Date;
(c) expenditure, transaction or commitment exceeding $50,000 individually or $100,000 in the aggregate, excluding the fulfillment of Permitted Purchase Orders;
(d) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer ) of the Company or any of its Subsidiaries (whether or not covered by insurance)) or the loss of any material customer;
(e) material employment dispute, including claims or matters raised by any individual, Governmental Entity, works council, employee or any workers’ representative representatives, group of employees, bargaining unit, union or other labor organization, bargaining unit regarding, claiming or union regarding alleging labor disputes or claims of trouble, wrongful discharge or any other unlawful employment or labor practice or action by with respect to the CompanyCompany or any of its Subsidiaries;
(f) adoption of or change in accounting policies methods or procedures practices (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP;
(g) making of or change in any Tax election, adoption of or change in any Tax election or accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement method in respect of Taxes, filing any entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, or any agreement or settlement of any amended Tax Returnclaim or assessment in respect of Taxes, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessmentassessment in respect of Taxes;
(h) revaluation by the Company or any of its Subsidiaries of any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable, for accounting purposes;
(i) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(i) (i) termination or extension, or material amendment, waiver or modification of the terms, of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or default;
(j) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any Lien in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into except as reflected in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements;
(k) loan by the Company to any PersonCompensation Schedule, incurring by the Company of any Indebtedness for borrowed money, guaranteeing by the Company of any Indebtedness for borrowed money, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees for travel and business expenses in the ordinary course of business consistent with past practices;
(l) waiver or release of any material right or claim of the Company;
(m) commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs;
(n) issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developed, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(r) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, bonuses or fringe benefits or other compensation (including equity-equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company or any of its Subsidiaries (with the exception of payments contemplated by this Agreement) of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its Employees, other than the Specified Bonuses and Option Bonus Agreement Amounts to be paid by the Company prior to the Effective Time or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any EmployeeEmployee other than the Specified Bonuses or Option Bonus Agreement Amounts to be paid by the Company prior to the Effective Time;
(k) any termination, extension, amendment or modification of the terms of any material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of its assets are bound;
(l) sale, lease, license or other disposition of any material assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries (other than in the ordinary course of business), including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in such assets or properties;
(m) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practices), or forgiveness by the Company or any of its Subsidiaries of any loan to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(n) incurring by the Company or any of its Subsidiaries of any Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any Indebtedness, or the issuance or sale of any debt securities of the Company or any of its Subsidiaries;
(o) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release or other compromise of any account receivable of the Company or any of its Subsidiaries;
(p) issuance, grant, delivery, sale or purchase of, or proposal or Contract to issue, grant, deliver, sell or purchase by the Company, of (i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or (ivii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(q) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed any Third Party IP Assets to the Company or any of its Subsidiaries;
(r) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property Assets, other than any Contract that is disclosed in Section 3.13(a) of the Disclosure Schedule;
(s) a Company Material Adverse Effect;
(t) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its Subsidiaries;
(u) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Company’s business;
(v) adoption, termination or amendment of any Company Employee PlanPlan or collective bargaining agreement or other agreement with any works council, union, employee or workers’ representatives, group of employees or other labor organization, except as required by applicable Law;
(w) increase in the rights to indemnification of any Employees;
(x) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or authorizing any cash or equity exchange for any options granted under any of such plans other than the Unvested Option Cashout;
(y) execution, termination or amendment of any Employee Agreement (other than as contemplated by this Agreement or the execution of the Company’s Company standard at‑will at will offer letterletter (or any standard employment agreement of any Subsidiary as required by Law), the form of which has been made available to Parent) or collective bargaining agreementwith any Employee providing for annual base compensation in excess of $125,000;
(sz) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(aa) any action to accelerate the vesting schedule or extend the post‑termination post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards; ;
(tbb) circumstancehiring (including any change of status from an independent contractor to an employee), changepromotion, event demotion or effect termination or any other change to the employment status or title of any character that has had employee;
(cc) alteration of any interest of the Company in any of its Subsidiaries or is reasonably likely any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(dd) cancellation, amendment or renewal of any insurance policy of the Company or any of its Subsidiaries;
(ee) issuance, or agreement to have a Material Adverse Effect issue, any refunds, credits, allowances or other concessions to customers with respect to amounts collected by or owed to the CompanyCompany or any of its Subsidiaries in excess of $25,000 individually or $100,000 in the aggregate; or
(ff) agreement by the Company or any of its Subsidiaries to do any of the things described in the preceding clauses (a) through (ee) of this Section 3.8 (other than negotiations and agreements with Parent and its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Solarcity Corp)
No Changes. Since December 31Between September 30, 2013, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereof2003 and the date of this Agreement, there has not been, occurred or arisen any:
(a) material transaction by the Company or any of its subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this Agreementcertificate of incorporation, bylaws or other organizational documents of the Company or any of its subsidiaries;
(c) (i) capital expenditure or commitment by the Company or any of its subsidiaries exceeding $25,000 individually or $50,000 in the aggregate, or (ii) any other expenditure, commitment or transaction by the Company or any of its subsidiaries exceeding $25,000 individually or $50,000 in the aggregate other than, in the case of clause (ii), in the ordinary course of business consistent with past practices;
(d) payment, dischargedischarge or satisfaction, waiver in any amount in excess of $25,000 in any one case, or satisfaction $50,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(d) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company (whether or not covered by insurance);
(e) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor disputes or claims of wrongful discharge or other unlawful employment or labor practice or action by the Company;
(f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, or depreciation or amortization policies or rates, rates or billing and invoicing policiespayment or collection policies or practices) by the Company;
(gf) making change in any material election in respect of Taxes (as defined in Section 2.10(a)), adoption or change in any Tax election, adoption of or change in any Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement method in respect of Taxes, filing agreement or settlement of any amended Tax Returnclaim or assessment in respect of Taxes, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessmentassessment in respect of Taxes;
(g) revaluation by the Company of any of its or any of its subsidiaries’ assets (whether tangible or intangible), including without limitation writing down or up the value of inventory or writing off notes or accounts receivable, settling, discounting or compromising any accounts receivable, or reversing any reserves other than in the ordinary course of business and consistent with past practice;
(h) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the PlanOptions;
(i) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors (iexcept pursuant to the terms of pre-existing obligations which are disclosed on Section 2.9(i) of the Disclosure Schedule), or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person (except pursuant to the terms of pre-existing obligations which are disclosed on Section 2.9(i) of the Disclosure Schedule);
(j) termination or extension, or material amendment, waiver or modification of the terms, of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaultContract;
(jk) commencement by or settlement of any lawsuit or proceeding or other investigation by the Company or any of its subsidiaries other than the routine collection of bills;
(l) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany or any of its subsidiaries, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(km) loan by the Company to any Personperson or entity, incurring by the Company of any Indebtedness for borrowed moneyindebtedness, guaranteeing by the Company of any Indebtedness for borrowed moneyindebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for trade payables and advances to Employees employees for travel and business expenses expenses, in each case in the ordinary course of business consistent with past practices;
(ln) waiver or release of any material right or claim of the Company;
(m) commencementCompany or any of its subsidiaries, settlementincluding any write-off, notice or, to the Knowledge of the Company, threat discount or other compromise of any lawsuit or proceeding or other investigation against the Company or its affairs;
(n) issuance or sale, or Contract or undertaking to issue or sell, by account receivable of the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(o) receipt by the Company of written noticeagreement or modification to any marketing, distribution, joint venture, strategic alliance, development or to the Knowledge of the Company other notice similar arrangement or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rightsagreement;
(p) request that any vendor or service provider hold or delay any invoices or billing statements, or any failure to purchase or replenish inventory in the ordinary course of business;
(i) sale sale, license or exclusive license transfer of any Company IP or Company Products Intellectual Property or execution of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person (person or entity with respect to the Intellectual Property Rights of any person or entity other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements)business, or (ii) purchase or exclusive in-license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (person or entity other than Shrink‑Wrap Software)ordinary course shrink wrap software agreements for internal operations, (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course any of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Companyits subsidiaries;
(r) (i) increase in or decrease in or other change to the salarydestruction, wage rates, bonusesdamage, or fringe benefits loss adversely affecting any material assets (whether tangible or other compensation (including equity-based compensationintangible) payable or to become payable by material business of the Company to or any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment its subsidiaries (whether in cash or equity or otherwise) not covered by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensationinsurance), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(s) labor trouble or claim of wrongful discharge or other unlawful labor practice or action with respect to the Company or any action of its subsidiaries;
(t) notice from any material customer that such customer intends to extend cancel or substantially reduce its purchases of goods and services from the post‑termination exercise period Company and its subsidiaries, or any such cancellation or substantial reduction;
(u) notice of any claim or potential claim of ownership by any person other than the Company Options of the Company Intellectual Property (as defined in Section 2.13(a)) owned by or developed or created by the Company or of infringement by the Company of any similar equity awards; other person’s Intellectual Property Rights (tas defined in Section 2.13(a));
(v) circumstance, change, event or effect of any character that has had or is reasonably likely to have a Material Adverse Effect with respect to the CompanyEffect; or
(w) written or oral agreement by the Company to do any of the things described in the preceding clauses (a) through (v) of this Section 2.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Polycom Inc)
No Changes. Since December 31Except as set forth on Section 2.10 of the Disclosure Schedule, 2013, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereofsince the Balance Sheet Date through the date of this Agreement, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except of the Company other than as expressly contemplated by this Agreement;
(c) capital expenditure or commitment by the Company exceeding $25,000 individually or $250,000 in the aggregate;
(d) payment, discharge, waiver discharge or satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business business, consistent with past practices, of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet or arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;
(de) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company (whether or not covered by insurance);
(ef) employment dispute, including but not limited to, claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union regarding labor disputes trouble or claims claim of wrongful discharge or other unlawful employment or labor practice or action by the Company;
(f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by with respect to the Company;
(g) making of or change in accounting methods or practices (including any Tax election, change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;
(h) adoption of or change in any material Tax election or any Tax accounting method, entering into any closing agreement with respect to Taxes, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Returnassessment, or consent to the extension or waiver or extension of the limitations limitation period for applicable to any Tax claim or assessment;
(hi) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or Accounts Receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(ik) (i) hiring or termination of any officer or extension, employee or material amendment, waiver or modification consultant of the termsCompany who earns more than $75,000, promotion, demotion or other change to the employment status or title of any Material Contract not required by officer of the terms thereof Company or (ii) breach of resignation or default under any Material Contract or the occurrence removal of any event or condition which, with director of the giving of notice or the passage of time or both, could constitute such a breach or defaultCompany;
(jl) other than in the ordinary course of business consistent with past practices in connection with promotions and existing Employee Agreements increase in or other change to the salary, or other compensation (including equity based compensation) payable or to become payable by the Company to any of its respective officers, directors, employees, consultants or advisors, or the declaration, adoption, agreement, contract, payment or binding commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person;
(m) entering into, or amendment or termination of, any Material Contract;
(n) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany outside of the ordinary course of business, consistent with past practices, including, but not limited to, the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(ko) loan by the Company to any Person, incurring or purchase by the Company of any Indebtedness debt securities of any Person, except for borrowed moneyadvances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(p) incurrence by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any Indebtedness for borrowed moneyindebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(lq) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any Accounts Receivable;
(mr) commencement, settlement, notice or, to the Knowledge of the Company, threat commencement or settlement of any lawsuit or proceeding or other investigation against by the Company or its affairsCompany;
(ns) issuance claims or salematters raised by any individual, Governmental Entity, or Contract workers’ representative organization, bargaining unit or undertaking to issue union, regarding, claiming or sellalleging labor trouble, by the Company wrongful discharge or any of its subsidiaries of (i) any shares of Company Capital Stock other unlawful employment or shares of capital stock of any of its subsidiaries labor practice or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights action with respect to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company OptionsCompany;
(ot) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership ownership, interest or right by any Person other than the Company of the Company IP Intellectual Property or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) except standard end user licenses entered into in the ordinary course of business, consistent with past practices, sale or exclusive license of any Company IP Intellectual Property or Company Products execution, modification or execution amendment of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person or with respect to the Intellectual Property Rights of any Person, (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into ii) except in the ordinary course of business business, consistent with past practices that do not materially differ in substance from the Standard Form Agreements)practices, (ii) purchase or exclusive license of any Intellectual Property Rights or Technology execution, modification or execution amendment of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software)Person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices)Company;
(qv) hiring agreement or termination modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any employee of the Companytype or scope with respect to any product, promotion, demotion service or other change to the employment status or title of any office of the Company or resignation or removal of any director technology of the Company;
(rw) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreement;
(s) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect with respect to Effect;
(x) lease, license, sublease or other occupancy of any Leased Real Property by the Company; or
(y) agreement by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (a) through (x) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract
No Changes. Since December 31Except as set forth on Section 3.10 of the Disclosure Schedule, 2013, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereofsince the Balance Sheet Date, there has not been, occurred or arisen any:
(a) material transaction by the event or condition of any character that has had or would reasonably be expected to have a Company except in the ordinary course of business as conducted on that date and consistent with past practicesMaterial Adverse Effect;
(b) modifications, amendments material transaction or changes to commitment by the Charter Documents except as expressly contemplated Company or relinquishment of any material right by this Agreementthe Company;
(c) payment, discharge, release, waiver or satisfaction of any claimclaim or right, liabilityor Liability in an amount in excess of $50,000, right in any one case, or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)$150,000 in the aggregate, other than payments, discharges or satisfactions in the ordinary course Ordinary Course of business Business of liabilities claims, rights and Liabilities properly reflected or reserved against in the Current Balance Sheet;
(d) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer or supplier of the Company (in each case, whether or not covered by insurance);
(e) employment dispute, including claims or matters raised by any individual, Governmental EntityAuthority, or any workers’ representative organization, bargaining unit or union regarding regarding, claiming or alleging any labor disputes issue or claims claim of breach of contract, policy, or past practice, misrepresentation, wrongful or unlawful discharge or other any unlawful employment or labor practice labor-related practice, breach or action by with respect to the Company;
(f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the Company;
(g) making of or change in any Tax election, adoption of or change in any Tax accounting methodmethod or Tax election, settlement or compromise of any Tax claim or assessment or assessment, entering into any closing agreement in respect of Taxes, filing of any amended Tax Returnreturn, or consent to the waiver or extension of the limitations period for any Tax claim or assessment;
(hi) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockShare Capital, or (ii) any split, combination or reclassification in respect of any shares of Company Capital StockShare Capital, or (iii) any issuance of, or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of for, Company Capital StockShare Capital, or (iv) any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the PlanShare Capital;
(i) (iA) termination or extension, or material amendment, waiver or modification of the terms, of any Material Contract not required by the terms thereof Contract, or (iiB) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or default;
(j) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company, including, but not limited to, including the sale of any accounts receivable of the Company, or any creation of any Lien in such material assets or material properties other than non-exclusive licenses of the Company Products Services to end-users pursuant to agreements that have been entered into in the ordinary course Ordinary Course of business consistent with past practices that do not materially differ in substance from the Standard Form AgreementsBusiness;
(k) loan by the Company to any Person, forgiveness by the Company of any loan to any Person, incurring by the Company of any Indebtedness for borrowed moneyIndebtedness, guaranteeing by the Company of any Indebtedness for borrowed moneyIndebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for reasonable advances to current Employees not exceeding $2,000 for business travel and other business expenses in the ordinary course Ordinary Course of business consistent with past practicesBusiness;
(l) waiver or release of any material right or claim of the Company;
(m) commencement, settlement, written notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against or involving the Company or its properties, assets, business or affairs;
(m) written notice of any claim or potential claim of ownership by any Person, other than the Company, of Company Intellectual Property or of infringement by the Company of any other Person’s Intellectual Property Rights;
(n) issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company OptionsShare Capital;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developed, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(r) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, or commissions, fees fringe benefits or other compensation (including equity-equity based compensation) payable or to become payable by the Company to to, or in respect of, any of its Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a notice payment, severance payment, leave approval or payment, change of control payment, any other termination or employment-related payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its, Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) Plan or collective bargaining agreement;
(p) increase in or alteration to the indemnification obligations of the Company to any Employee;
(q) execution, termination or amendment of any Employee Agreement (other than execution of the Company’s applicable standard offer letter, each of the forms of which have been delivered by the Company);
(r) the hiring of any individual or termination of any Employee, including any officer of the Company, the promotion, demotion or other change to employment status or title of any officer of the Company, or the resignation or removal of any member of the Board of Directors of the Company;
(s) waiver or release of any right or claim of the Company;
(t) any action to extend by the post‑termination exercise period Company that, if taken from and after the execution of any Company Options this Agreement until the Closing, would be prohibited by Section 6.1 or Section 6.2; or
(u) agreement or commitment by the Company, or any similar equity awards; Employee on behalf of the Company, to do any of the things described in the preceding clauses (a) through (t) circumstance, change, event or effect of this Section 3.10 (other than negotiations with Buyer regarding the transactions contemplated by this Agreement and any character that has had or is reasonably likely to have a Material Adverse Effect with respect to the Company; orRelated Agreements).
Appears in 1 contract
Sources: Purchase Agreement (RR Media Ltd.)
No Changes. Since December 31, 2013, except Except as set forth on Section 5.18 of the Company Disclosure Schedule or as expressly permitted undercontemplated by this Agreement, required or specifically consented to by Parent pursuant to Section 4.1 hereofsince the Balance Sheet Date, there has not been, occurred or arisen any:
(a) material transaction capital expenditure or commitment or other payment obligation by the Company except exceeding $50,000 individually or $200,000 in the ordinary course of business as conducted on that date and consistent with past practicesaggregate;
(b) modifications, amendments or changes to the Charter Documents except as expressly contemplated by this Agreement;
(c) payment, discharge, waiver discharge or satisfaction by the Company of any claim, liability, right claim or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)Liability, other than payments, discharges or satisfactions in the ordinary course of business of liabilities Liabilities reflected or reserved against in the Current Balance SheetSheet as required under the Contract relating to such Liability or trade payables incurred in the ordinary course of business;
(c) borrowed or agreed to borrow any amount of, incurred or become subject to any Indebtedness, or mortgaged, pledged or subject to any Lien any properties or assets of the Company;
(d) destruction of, damage to, or loss of any material assets of the Company (whether tangible or intangible), ) having a replacement value in excess of $25,000 or any material business or loss of a material customer Customer of the Company (in each case, whether or not covered by insurance);
(e) employment dispute, adoption by the Company of any new accounting method or change by the Company in accounting methods or practices (including claims any change in depreciation or matters raised by any individual, Governmental Entity, amortization policies or any workers’ representative organization, bargaining unit or union regarding labor disputes or claims rates) of wrongful discharge or other unlawful employment or labor practice or action by the Company;
(f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the Company of any new Tax election inconsistent with the Company;
(g) making ’s prior course of or practice, change by the Company in any Tax election, adoption amended Tax Returns filed by the Company, new Contract entered into involving the Company with respect to Taxes, an assertion of any written or change in any to the Knowledge of the Company other Tax accounting methodclaim or assessment against the Company, settlement or compromise by the Company of any Tax claim or assessment, surrender of any right to claim a refund of Taxes by the Company, extension or waiver by the Company of the limitation period applicable to any Tax claim or assessment or entering into any closing agreement in respect of Taxes, the filing by the Company of any amended Tax Return, or consent to the waiver or extension change in Tax residence of the limitations period Company or any other action taken outside the ordinary course of business that would have the effect of increasing the Tax liability of the Company for any Tax claim period (or assessmentportion thereof) beginning after the Closing Date;
(hg) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital StockSecurities, or any split, combination or reclassification in respect of any shares of Company Capital StockSecurities, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares Company Securities (other than Company Securities issued upon the exercise or conversion of Company Capital Stockthe Convertible Securities), or any direct or indirect repurchase, redemption, or other acquisition by the Company of of, or any shares of issuance of, any Company Capital Stock Securities (or options, warrants or other rights convertible into, exercisable or exchangeable therefor)for Company) or any equity appreciation, except in accordance with phantom equity or similar rights;
(h) resignation or removal of any officer, director or manager of the agreements evidencing Company Options or restricted stock awards granted under the PlanCompany;
(i) (i) adoption, amendment or termination or extensionof any Benefit Plan, or material amendmentadopting any new employee benefit plan, waiver arrangement or modification agreement (including any such plan, arrangement or agreement providing for retention, change of the termscontrol, of any Material Contract not required by the terms thereof severance or (ii) breach of similar payments or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a breach or defaultpotential payments);
(j) made or granted any bonus or any wage, salary or other compensation increase to any Employee;
(k) implemented any location closing or other layoff of employees that could implicate the Worker Adjustment Retraining and Notification Act, 29 U.S.C. § 2101 et seq., or any similar state or local Laws (collectively, the “WARN Act”);
(l) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company outside of the ordinary course of business of the Company, including, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(km) loan by the Company to any Person, incurring or purchase by the Company of any Indebtedness for borrowed money, guaranteeing by the Company of any Indebtedness for borrowed money, issuance or sale of any debt securities of any Person, or guarantee any of the Company or guaranteeing foregoing of any debt securities of othersPerson, except for advances to Employees employees for travel and business expenses in the ordinary course of business consistent with past practicesof the Company;
(ln) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any Accounts Receivable, or change in practices or procedures with respect to the collection of Accounts Receivable or extension of any other incentive with respect thereto;
(mo) commencement, settlement, notice written or, to the Knowledge of the Company, other notice or threat of any lawsuit or proceeding adverse change in the relationship between the Company and its customers, suppliers or other investigation against the Company or its affairsvendors;
(np) issuance commencement or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(o) receipt settlement by the Company of written noticeany lawsuit, or the commencement of any lawsuit, investigation or similar proceeding against the Company;
(q) increase in any wage, salary, bonus or other compensation of any officer, employee, director, representative or consultant of the Company;
(r) employment dispute, including claims or matters raised by any individual, Governmental Authority, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action or violation of Law, in each case with respect to the Knowledge of the Company other Company;
(s) written notice or threat, of any claim or potential claim of (i) ownership of, interest in or right to any of the Company Intellectual Property by any Person (other than the Company of Company IP Company) or of infringement (ii) infringement, misuse, or misappropriation by the Company of any other Person’s Intellectual Property Rights;
(pt) (i) sale sale, lease, license, assignment, or exclusive license transfer by the Company to any Person of any Company IP Intellectual Property or Company Products execution, modification, termination, or execution amendment of any agreement Material Contract to which the Company is a party with respect to the Company IP or Company Products Intellectual Property with any Person (other than non‑exclusive or with respect to the Intellectual Property of any Person, in each case, excluding standard end user licenses of the Company Products to end‑users pursuant to agreements that have been and Contracts and similar Contracts entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from of the Standard Form Agreements)Company, (ii) purchase purchase, assignment, or exclusive license of any Intellectual Property Rights or Technology execution, modification, termination, or execution amendment of any agreement Material Contract to which the Company is a party with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software)Person, (iii) agreement new Contract or termination, modification, or amendment of an existing Contract to which the Company is a party, with respect to the development of any Technology or Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developed, or (iv) lapse, expiration, abandonment or any other disposition of any Company Intellectual Property;
(u) entering into a Contract or material modification to any Contract pursuant to which any other party was granted design, development, use, import, branding, advertising, promotion, marketing, distribution, testing, packaging, labelling, manufacturing or selling rights with respect to any Company product (including the AMDS), except in the ordinary course of business of the Company;
(v) lease, license, sublease or other occupancy of any Leased Real Property by the Company;
(w) change in the pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights or Technology to the Company, or make any other material change to the terms and conditions (including payment, discount, allowance, warranty or indemnification terms) upon which the Company makes the Company products (including the AMDS) available to third parties, or otherwise;
(x) other than changes in pricing or royalties made in transaction outside the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(ry) (i) increase in promise, commitment or decrease in or other change to Contract by the salary, wage rates, bonusesCompany, or fringe benefits or other compensation any Employee on behalf of the Company, to do any of the things described in the preceding clauses (including equity-based compensationa) payable or to become payable by the Company to any Employees, through (iix) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement this Section 5.18 (other than negotiations with Buyer and its Representatives regarding the execution of transactions contemplated in this Agreement and the Company’s standard at‑will offer letter) or collective bargaining agreement;Related Agreements); or
(sz) any action to extend the post‑termination exercise period event, occurrence of any Company Options or any similar equity awards; (t) circumstance, change, event or effect of any character development that has had had, or is would reasonably likely be expected to have have, individually or in the aggregate, a Company Material Adverse Effect with respect to the Company; orEffect.
Appears in 1 contract
No Changes. Since December 31, 20132015, and except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 hereofdisclosed in the Disclosure Schedule, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents except of the Company other than as expressly contemplated by this Agreement;
(c) capital expenditure or commitment by the Company exceeding $25,000 in the aggregate;
(d) payment, discharge, waiver discharge or satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetbusiness;
(de) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of a material customer of the Company (whether or not covered by insurance);
(ef) material employment dispute, including claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union regarding labor disputes trouble or claims claim of wrongful discharge or other unlawful employment or labor practice or action by the Company;
(f) adoption of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by with respect to the Company;
(g) making other than in the ordinary course of or business, change in accounting methods or practices (including any Tax election, change in depreciation or amortization policies or rates) by the Company other than as required by GAAP or by Law;
(h) adoption of or change in any material Tax election or, other than in the ordinary course of business, any Tax accounting method, entering into any closing agreement with respect to Taxes, settlement or compromise of any material Tax claim or assessment, extension or waiver of the limitation period applicable to any Tax claim or assessment or entering into any closing agreement in respect of Taxes, filing of any amended material Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment;
(hi) revaluation by the Company of any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or Accounts Receivable;
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options or restricted stock awards granted under the Plan;
(ik) (i) hiring or termination of any employee or individual consultant of the Company, other than with respect to non-officer employees and individual consultants in the ordinary course of business, (ii) promotion, demotion or other change to the employment status or title of any officer of the Company or (iii) resignation or removal of any director of the Company;
(l) (i) increase in the salary or other compensation (including equity based compensation whether payable in cash, securities or otherwise) payable or to become payable by the Company to any of its officers, directors, employees, individual consultants or advisors, other than with respect to non-officer employees and individual consultants in the ordinary course of business or (ii) the declaration, adoption, agreement, contract, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other extraordinary compensation to any such Person;
(m) agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, or material amendment, waiver amendment or modification of the terms, terms of any Material Contract not required agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound, other than agreements, contracts, covenants, instruments, leases, licenses or commitments entered into in the terms thereof or (ii) breach ordinary course of or default under any Material Contract or the occurrence of any event or condition whichbusiness, consistent with the giving of notice or the passage of time or both, could constitute such a breach or defaultpast practice;
(jn) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany outside of the ordinary course of business, includingconsistent with past practices, but not limited to, including the sale of any accounts receivable of the CompanyAccounts Receivable, or any creation of any Lien security interest in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreementsproperties;
(ko) loan by the Company to any Person, incurring or purchase by the Company of any Indebtedness debt securities of any Person, except for borrowed moneyadvances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(p) incurrence by the Company of any Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any Indebtedness for borrowed moneyIndebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(lq) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any Accounts Receivable;
(mr) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or Company, its affairs, or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(ns) claims or matters raised by any individual, Governmental Authority, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company;
(t) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company of the Company Intellectual Property (as defined in Section 2.14 hereof) or of infringement by the Company of any other Person’s Intellectual Property Rights (as defined in Section 2.14 hereof);
(u) issuance or sale, or Contract contract or undertaking agreement to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Common Stock, Company Preferred Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Common Stock, Company Preferred Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing except for issuances of Company OptionsCommon Stock upon the exercise of options issued under the Plan;
(oi) receipt by except standard end user licenses and software-as-a-service agreements entered into in the Company ordinary course of written noticebusiness, consistent with past practices, sale, lease, license or transfer to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP Intellectual Property or Company Products execution, modification or execution amendment of any agreement with respect to the Company IP or Company Products Intellectual Property with any Person (other than non‑exclusive licenses or with respect to the Intellectual Property Rights of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements)any Person, (ii) purchase or exclusive license of any Intellectual Property Rights or Technology execution, modification or execution amendment of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software)Person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developedparty, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(rw) (i) increase in agreement or decrease in or other change to the salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company modification to any Employeesagreement pursuant to which any other party was granted marketing, (ii) declarationdistribution, payment development, manufacturing or commitment or obligation similar rights of any kind for the payment (whether in cash type or equity or otherwise) by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case scope with respect to any Employees, (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or (iv) adoption, termination or amendment of any Company Employee Plan, Employee Agreement (other than the execution of the Company’s standard at‑will offer letter) or collective bargaining agreementProduct;
(sx) any action to extend the post‑termination exercise period of any Company Options or any similar equity awards; (t) circumstance, change, event or effect condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect with respect to Effect;
(y) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company; or
(z) agreement by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses (a) through (y) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement and the Related Agreements).
Appears in 1 contract