No Changes. Since the 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) 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 or 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, 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 otherwise 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; (e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance); (f) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries; (g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP; (h) adoption of or change in any Tax accounting method or material Tax election, closing agreement in respect of Taxes, settlement of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment; (i) 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 Stock or the capital stock of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital Stock 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 Stock 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); (k) 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 (whether 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 waiver, amendment or modification of the terms of any 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 which it or any of their respective assets are bound; (m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, 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; (n) material loan by the Company or any of its Subsidiaries 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, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices; (o) 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 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; (q) 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 Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoing; (r) written notice of any claim or potential 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 proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of 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 any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, 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 the ordinary course of business and consistent with past practice; (t) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practice, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, other than 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 with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practice; (u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries; (v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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 business 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 Except as expressly contemplated by this Agreement, or other than as set forth in Section 2.11 of the Disclosure Schedule, since the 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, each of the Company and its Subsidiaries has operated the Business only in the ordinary course and there has not been, occurred or arisen any:
(a) transaction by the Company or its Subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments amendment or changes change to the Charter Documents or organizational documents the Subsidiary Charter Documents; EXECUTION VERSION
(c) amendment of any Subsidiaryterm of any outstanding security of the Company or its Subsidiaries;
(cd) expenditure, transaction or commitment by the Company or its Subsidiaries exceeding $25,000 75,000 individually or $75,000 in the aggregate or with respect to any commitment or transaction of the type described in Section 2.13 hereof in any case by the Company or any of its Subsidiariessingle Person;
(de) payment, discharge, waiver or satisfaction, in any amount in excess of $25,000 in any one case, or $75,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges discharges, waivers or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(ef) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(fg) material 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 trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(gh) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(hi) change in any material election in respect of Taxes (as defined in Section 2.13(a) hereof), adoption of or change in any Tax accounting method or material Tax election, closing agreement in respect of Taxes, agreement or settlement of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(ij) revaluation by the Company or any of its Subsidiaries of any of its their material assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;
(jk) 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 of any SubsidiaryStock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, 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 the capital stock of any SubsidiaryStock, or any direct or indirect repurchase, redemption, or other acquisition by the Company or its Subsidiaries 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);
(kl) 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 its officers, directors, employees, consultants employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity cash or other propertyequity) 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;; EXECUTION VERSION
(lm) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiaries is a party or by which they or any termination of their assets (whether tangible or intangible) are bound or any termination, extension, or material waiver, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements)lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it they or any of their respective assets are bound, other than in the ordinary course of business;
(mn) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, including including, but not limited to, 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, other than non-exclusive licenses of the Company Products by the Company or its Subsidiaries in the ordinary course of business;
(no) material loan by the Company or any of its Subsidiaries to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person Person, or amendment capital contributions to investment in any Person;
(p) creation or other incurrence by the terms Company or its Subsidiaries of any outstanding loan agreementLien on any of its asset, except for advances to employees Liens for travel Taxes not yet due and business expenses in the ordinary course of business consistent with past practicespayable;
(oq) 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;
(pr) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release write-off or other compromise of any account receivable of the Company or any of its Subsidiaries, other than in the ordinary course of business;
(qs) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, the commencement, settlement, notice or, to the Knowledge of the Company, or written threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoingaffairs;
(rt) written notice of any claim or potential claim of ownership, interest or right by any person other than the Company in or any of its Subsidiaries of to the Company Intellectual Property (as defined below) 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 's Intellectual PropertyProperty (as defined below);
(su) issuance, grant, delivery, delivery or sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of 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 any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, 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 the ordinary course of business and consistent with past practice;
(t) (i) sale, lease, sale or license or transfer of any Company Intellectual Property owned by the Company or execution, modification or amendment execution of any agreement with respect to Company Intellectual Property owned or exclusively licensed by the Company with any Person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practicePerson, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment execution of any agreement with respect to the Intellectual Property of any Person, other than 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 with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practice;
(u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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 business 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).EXECUTION VERSION
Appears in 1 contract
No Changes. Since Except as contemplated by this Agreement, from the Balance Sheet Date, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 Date through the date hereof, the Company and its Subsidiaries have operated their business only in the Ordinary Course and there has not been, occurred or arisen any:
(a) transaction by amendment or change to the Company except in Charter Documents or the ordinary course of business as conducted on that date and consistent with past practicesSubsidiary Charter Documents;
(b) modifications, amendments or changes to the Charter Documents or organizational documents amendment of any Subsidiaryterm of any outstanding security of the Company or its Subsidiaries, other than amendments of vesting periods of the Accelerated Company Vested Options in contemplation of this Agreement and the transactions contemplated hereby;
(c) expenditure, transaction or commitment exceeding $25,000 individually or $75,000 in the aggregate or any commitment expenditure or transaction of the type described in Section 2.13 hereof in any case with a monetary commitment by the Company or its Subsidiaries exceeding $100,000 individually or $500,000 in the aggregate with respect to any of its Subsidiariessingle Person;
(d) paymentsettlement, discharge, waiver waiver, release or satisfaction, in any amount in excess of $25,000 in any one case, or $75,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries)) exceeding $100,000 individually or $500,000 in the aggregate with respect to any single Person, other than paymentsany such settlement, discharges discharge, waiver, release or satisfactions satisfaction entered into in the ordinary course of business of liabilities reflected or reserved against Ordinary Course on terms that were consistent in the Current Balance Sheetall material respects with previously existing Contract provisions;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer ) of the Company or any its Subsidiaries, resulting in a loss of its Subsidiaries more than $75,000 (whether or not covered by insurance);
(f) 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 trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(h) adoption of or change in any Tax accounting method or material Tax election, closing agreement election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes by the Company or any of its Subsidiaries;
(i) revaluation by the Company or any of its Subsidiaries of any of its assets asset (whether tangible or intangible), including writing down the value of inventory or writing off notes a note or an accounts receivable, in an amount exceeding $75,000;
(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 the capital stock of any SubsidiaryStock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, 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 the capital stock of any SubsidiaryStock, or any direct or indirect repurchase, redemption, or other acquisition by the Company or its Subsidiaries 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);
(k) 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 officersofficer, directors, employees, consultants director or advisorsemployee, or the declaration, payment or payment, commitment or obligation of any kind for the payment (whether in cash, equity cash or other propertyequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, payment or special bonus or other additional salary or compensation to any such personofficer, director or employee;
(l) any termination entry into (or termination, extension, or material waiver, amendment or modification of the terms of of) any agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements), license or commitment Contract to which the Company or any of its Subsidiaries is a party or by which it they or any of their respective assets (whether tangible or intangible) are bound, other than Contracts entered into in the Ordinary Course;
(m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, 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, other than any such disposition made in the Ordinary Course or involving receipt of less than $100,000;
(n) material loan by the Company or any of its Subsidiaries to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person Person, or amendment capital contributions to the terms of investment in any outstanding loan agreement, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practicesPerson;
(o) creation or other incurrence by the Company or its Subsidiaries of any Lien on any of their assets;
(p) incurring by the Company or any of its Subsidiaries of any material indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any such 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 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;
(q) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the or commencement, settlement, written notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoingaffairs;
(r) written notice of any claim or potential claim of ownership, interest or right by any person Person other than the Company or any of its Subsidiaries of in or to 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, delivery or sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of 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 any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances other than shares 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 issued upon exercise of options outstanding as of the Company under the Plan in the ordinary course of business and consistent with past practiceBalance Sheet Date;
(t) (i) sale, lease, sale or license or transfer of any Company Intellectual Property owned by the Company or execution, modification its Subsidiaries or amendment execution of any agreement Contract with respect to Company Intellectual Property owned or exclusively licensed by the Company or its Subsidiaries with any Person Person, other than any such sale or with respect to the Intellectual Property of any Person except license entered into in the ordinary course of business consistent with past practiceOrdinary Course, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment execution of any agreement Contract with respect to the Intellectual Property of any Person, other than nonin connection with a purchase or license of “off-exclusive, endthe-user licenses for the Company’s products entered into in the ordinary course of businessshelf” software, (iii) agreement or modification or amendment of an existing agreement Contract with respect to the development of any Intellectual Property with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) material change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective its customers or licensees licensees, or (v) material change in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practice;
(u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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 business 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
Sources: Merger Agreement (Compuware Corp)
No Changes. Since the date of the Current Balance Sheet DateSheet, except as expressly permitted under, required or specifically consented to by Parent Buyer pursuant to Section 4.1 or Section 4.3 6.1 hereof, and except as set forth in Section 4.10 of the Company Disclosure Schedule, and except in connection with this Agreement there has not been, occurred or arisen any:
(a) transaction Contract entered into by the Company or any modifications, amendments or changes to any Contract 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 or organizational documents of any SubsidiaryDocuments;
(c) expenditure, transaction or commitment exceeding $25,000 10,000 individually or $75,000 20,000 in the aggregate or any commitment or transaction of the type described in Section 2.13 4.13 hereof in any case by the Company or any of its SubsidiariesCompany;
(d) payment, discharge, waiver or satisfaction, in any amount in excess of $25,000 10,000 in any one case, or $75,000 20,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetbusiness;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), or material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(f) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by Swedish GAAP;
(h) adoption of or change in any Tax accounting method or material Tax election, closing agreement election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(i) material 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) the 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 of any SubsidiaryStock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, 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 the capital stock of any SubsidiaryStock, 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);
(k) 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 (whether in cash, equity cash or other propertyequity) 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, except for any payments required to be made under the terms of any plan or agreement listed in Section 4.23(b)(1) of the Company Disclosure Schedule and termination payments required by Swedish law;
(l) Contract to which the Company’s assets (whether tangible or intangible) are bound or any termination or termination, extension, or material waiver, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements), license or commitment Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective Company’s assets are bound;
(m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its SubsidiariesCompany, including the sale of any accounts receivable of the Company or any of its SubsidiariesCompany, or any creation of any security interest Lien in such assets or properties, except for the sale, lease, license or other disposition of the Company’s products to customers in the ordinary course of business consistent with past practice;
(n) material loan by the Company or any of its Subsidiaries 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, except for advances to employees for travel and business expenses and extensions of credit to customers, in each case, in the ordinary course of business consistent with past practices;
(o) 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 Company or any of its SubsidiariesCompany, including any waiver, release or other compromise of any account receivable of the Company or any of its Subsidiariesfor which a reserve was not present on the current balance sheet;
(q) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, the commencement, settlement, notice or, to the Knowledge of the CompanyShareholders after reasonable inquiry of the Employees, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to their respective its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) written notice of any claim or potential claim of ownership, interest or right by any person Person, other than the Company or any of its Subsidiaries Company, of the Company Intellectual Property (as defined in Section 4.15(a)) 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 PropertyProperty (as defined in Section 4.15(a));
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its SubsidiariesCompany, of 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 any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, 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 the ordinary course of business and consistent with past practice;
(t) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement Contract with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person Property, except in the ordinary course of business consistent with past practicepractices (including the sale, lease, or license of the Company’s products to customers), or (ii) purchase or license of any Intellectual Property from or to any Person or execution, modification or amendment of any agreement Contract with respect to the Intellectual Property of any Person, other than non-exclusive, end-user licenses for the sale of the Company’s ’ products entered into pursuant to its standard end user license and other terms in the ordinary course of businessbusiness consistent with past practice, (iii) agreement Contract or modification or amendment of an existing agreement Contract with respect to the development of any Intellectual Property with by the Company for a third party, other than non-exclusive, end-user licenses party or by a third party for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of to its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Company Intellectual Property to the Company except in the ordinary course of business consistent with past practicepractices;
(u) agreement Contract or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology Company Intellectual Property except in the ordinary course of the Company or any of its Subsidiariesbusiness consistent with past practices;
(v) event or condition of any character that has had or to the Knowledge of Shareholders, after reasonable inquiry of its Employees, is reasonably likely to have a Company Material Adverse 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 SubsidiariesCompany;
(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 business of the Company or any of its SubsidiariesCompany;
(y) grant by the Company adoption 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 ;
(z) execution of any Contract by the Company regarding any strategic alliance, or any of its Subsidiaries to pay any bonus affiliate 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 practicejoint marketing arrangement;
(aa) execution any action to accelerate the vesting schedule of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its SubsidiariesCapital Stock;
(bb) hiring, promotion, demotion or termination or other change to the employment status or title of any employees;
(cc) alteration of any interest of the Company in 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 except renewals in the ordinary course of business; or
(ccee) agreement by the Company or any of its SubsidiariesCompany, or any officer or employees on behalf of the Company or any of its SubsidiariesCompany, to do any of the things described in the preceding clauses (a) through (bbee) of this Section 2.10 4.10 (other than negotiations with Parent Buyer and its representatives regarding the transactions contemplated by this Agreement, any Related Agreements Agreement and any Employment Related Agreements).
Appears in 1 contract
No Changes. Since Except as set forth on Section 4.9 of the Disclosure Letter, since the 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:: 18
(a) 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 of the Company other than as contemplated by this Agreement;
(b) capital expenditure or organizational documents of any Subsidiarycommitment by the Company exceeding $50,000 in the aggregate;
(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 discharge or satisfaction, in any amount in excess of $25,000 in any one case, or $75,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), 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;
(ed) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(fe) 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 trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(gf) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAPCompany;
(hg) adoption of or change in any material Tax election or any Tax accounting method or material Tax electionmethod, closing entering into any agreement in with a Governmental Authority with respect of to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any material Tax claim or assessment, or filing of any amended material Tax Return;
(ih) 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 receivableAccounts Receivable;
(ji) 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 of any SubsidiaryStock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, 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 the capital stock of any SubsidiaryStock, 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);
(kj) material increase in 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 or to any of its Subsidiaries to any of their respective officers, directors, employees, consultants consultants, or advisors, other than increases to salaries or cash or equity incentive opportunities made in the declaration, payment or commitment or obligation ordinary course of any kind for the payment (whether 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 personbusiness consistent with past practice;
(l) adoption of or entrance into by the Company any termination or extensionContract for, or material waiver, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements), license or other commitment to which by the Company to pay, a severance payment or similar termination payment to any of its Subsidiaries is a party officers, directors, Employees, consultants, or by which it or any advisors, other than in the ordinary course of their respective assets are boundbusiness;
(m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any outside of its Subsidiariesthe ordinary course of business, including the sale of any accounts receivable of the Company or any of its SubsidiariesAccounts Receivable, or any creation of any security interest in such assets or properties;
(n) material loan by the Company or any of its Subsidiaries 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 agreementPerson, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practicesbusiness;
(o) incurring incurrence by the Company or any of its Subsidiaries of any material indebtednessIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness, 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 practicesbusiness;
(p) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any account receivable of the Company or any of its SubsidiariesAccounts Receivable;
(q) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company Company, its affairs, or relating to any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) written notice of any claim or potential claim of ownership, interest or right by any person Person other than the Company in or any of its Subsidiaries of to 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 PropertyProperty Rights;
(s) issuance, grant, delivery, sale issuance or purchasesale, or proposal, contract or agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, of 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 any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, ;
(i) 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 agreements with customers entered into in the ordinary course of business and consistent with past practice;
(t) (i) on the Company’s form of customer agreement, sale, lease, license or transfer to any Person of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any Person or with respect to Person, (ii) except for licenses for Off the Intellectual Property of any Person except Shelf Software entered into in the ordinary course of business consistent with past practicebusiness, or (ii) purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any Person, other than 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 Technology or Intellectual Property Rights with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of to its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights to the Company except in the ordinary course of business consistent with past practiceCompany;
(u) agreement or modification to any Material Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its SubsidiariesProduct;
(v) event or condition of any character that has had had, or is could reasonably likely be expected to have have, a Company Material Adverse 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 alteration, amendment, modification, violation or termination of its Subsidiaries;any Lease Agreements; or
(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 business 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 SubsidiariesCompany, or any officer or employees on behalf of the Company or any of its SubsidiariesCompany, to do any of the things described in the preceding clauses (a) through (bbw) of this Section 2.10 4.9 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement, any Related Agreements Agreement and any Employment the Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Yext, Inc.)
No Changes. Since Except as set forth on Section 4.9 of the Disclosure Letter, since the 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) 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 of the Company other than as contemplated by this Agreement;
(b) capital expenditure or organizational documents of any Subsidiarycommitment by the Company exceeding $50,000 in the aggregate;
(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 discharge or satisfaction, in any amount in excess of $25,000 in any one case, or $75,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), 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;
(ed) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(fe) 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 trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(gf) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAPCompany;
(hg) adoption of or change in any material Tax election or any Tax accounting method or material Tax electionmethod, closing entering into any agreement in with a Governmental Authority with respect of to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any material Tax claim or assessment, or filing of any amended material Tax Return;
(ih) 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 receivableAccounts Receivable;
(ji) 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 of any SubsidiaryStock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, 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 the capital stock of any SubsidiaryStock, 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);
(kj) material increase in 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 or to any of its Subsidiaries to any of their respective officers, directors, employees, consultants consultants, or advisors, other than increases to salaries or cash or equity incentive opportunities made in the declaration, payment or commitment or obligation ordinary course of any kind for the payment (whether 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 personbusiness consistent with past practice;
(l) adoption of or entrance into by the Company any termination or extensionContract for, or material waiver, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements), license or other commitment to which by the Company to pay, a severance payment or similar termination payment to any of its Subsidiaries is a party officers, directors, Employees, consultants, or by which it or any advisors, other than in the ordinary course of their respective assets are boundbusiness;
(m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any outside of its Subsidiariesthe ordinary course of business, including the sale of any accounts receivable of the Company or any of its SubsidiariesAccounts Receivable, or any creation of any security interest in such assets or properties;
(n) material loan by the Company or any of its Subsidiaries 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 agreementPerson, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practicesbusiness;
(o) incurring incurrence by the Company or any of its Subsidiaries of any material indebtednessIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness, 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 practicesbusiness;
(p) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any account receivable of the Company or any of its SubsidiariesAccounts Receivable;
(q) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company Company, its affairs, or relating to any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) written notice of any claim or potential claim of ownership, interest or right by any person Person other than the Company in or any of its Subsidiaries of to 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 PropertyProperty Rights;
(s) issuance, grant, delivery, sale issuance or purchasesale, or proposal, contract or agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, of 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 any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, ;
(i) 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 agreements with customers entered into in the ordinary course of business and consistent with past practice;
(t) (i) on the Company’s form of customer agreement, sale, lease, license or transfer to any Person of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any Person or with respect to Person, (ii) except for licenses for Off the Intellectual Property of any Person except Shelf Software entered into in the ordinary course of business consistent with past practicebusiness, or (ii) purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any Person, other than 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 Technology or Intellectual Property Rights with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practice;
(u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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 business 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
Sources: Merger Agreement
No Changes. Since Except as provided in Section 2.10 of the Disclosure Schedule, since the Balance Sheet Date, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 hereofDate through the date of this Agreement, there has not been, occurred or arisen any:
(a) 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 or organizational documents of any Subsidiarythe Company;
(c) expenditure, transaction material decrease in the Company’s annual contract value;
(d) capital expenditure or commitment therefor by the Company exceeding $25,000 individually or $75,000 100,000 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 Subsidiariesaggregate;
(de) payment, discharge, waiver discharge or satisfaction, in any amount in excess of $25,000 in any one case, or $75,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), other than (i) payments, discharges or satisfactions in the ordinary course of business 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;
(ef) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(fg) 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 trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(gh) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAPCompany;
(hi) adoption of or change in any material Tax (as defined in Section 2.11) election or any Tax accounting method or material Tax electionmethod, entering into any closing agreement in with respect of to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(ij) material revaluation by the Company or any of its Subsidiaries 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;
(jk) 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 of any SubsidiaryCommon Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryCommon 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 the capital stock of any SubsidiaryCommon Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Common Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(kl) material increase in or other change to the salary or other compensation payable or to become payable by the Company or to 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 (whether in cash, equity cash or other propertyequity) 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, other than pursuant to the Company’s written plans and policies in effect as of the Balance Sheet Date and listed in Section 2.22(b)(1) of the Disclosure Schedule;
(lm) entry into a Material Contract or any termination or termination, extension, or material waiver, amendment or modification of the terms of any 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 which it or any of their respective assets are boundMaterial Contract;
(mn) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any outside of its Subsidiariesthe ordinary course of business, including consistent with past practices, including, but not limited to, the sale of any accounts receivable of the Company or any of its SubsidiariesCompany, or any creation of any security interest in such assets or properties;
(no) material loan by the Company or any of its Subsidiaries to any Personperson or entity, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person person or amendment to the terms of any outstanding loan agreemententity, except for advances to employees for travel and business expenses in the ordinary course of business business, consistent with past practices, in an amount not to exceed $10,000 in any one case or $25,000 in the aggregate;
(op) incurring incurrence by the Company or any of its Subsidiaries of any material indebtednessindebtedness for borrowed money, 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 business, consistent with past practices;
(pq) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any account receivable of the Company or any of its SubsidiariesCompany;
(qr) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or or, to the Knowledge of the Company, other investigation against the Company or any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoingaffairs;
(rs) written notice of any claim or potential claim of ownership, interest or right by any person other than the Company or any of its Subsidiaries a Company Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries (as defined in Section 2.14 hereof) or of infringement by the Company or any of its Subsidiaries of any other Personperson’s Intellectual PropertyProperty Rights (as defined in Section 2.14 hereof);
(st) issuance, grant, delivery, sale issuance or purchasesale, or proposal, contract or agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, of 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 any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of options under a Plan and issuances of Company Capital Common 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 issued under the Plan in the ordinary course of business and consistent with past practicePlans;
(tu) (i) sale, lease, sale or license or transfer of any Company Intellectual Property to, or execution, modification or amendment of any agreement with respect to any Company Intellectual Property with with, any Person person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practiceentity, or (ii) purchase or license of any third-party Intellectual Property Rights from, or execution, modification or amendment of any agreement with respect to the any third-party Intellectual Property of Rights with, any Person, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of businessperson or entity, (iii) agreement agreement, or modification or amendment of an existing agreement agreement, with respect to the development of any Content & Technology or Intellectual Property Rights, with a third party, party (other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of businesscustom research projects that involve less than $50,000), or (iv) material change in pricing or royalties set or charged by the Company or any of to its Subsidiaries to their respective customers or licensees licensees, or in pricing or royalties set or charged by Persons persons who have licensed Content & Technology or Intellectual Property Rights to the Company except in the ordinary course of business consistent with past practiceCompany;
(uv) agreement or modification to any Material Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its SubsidiariesProduct;
(vw) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(wx) 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 (as defined in Section 2.13 hereof) 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 business 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 employeesCompany; or
(ccy) 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 (bbx) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement, any Related Agreements Agreement and any Employment the Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Gartner Inc)
No Changes. Since the Balance Sheet DateExcept as contemplated by this Agreement, except as expressly permitted undersince March 31, required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 hereof2011, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on that date the Balance Sheet Date and consistent with past practices, other than the contemplated Company Distributions;
(b) modifications, amendments or changes to the Charter Documents or organizational documents of any SubsidiaryDocuments;
(c) expenditure, transaction or commitment with any Person exceeding $25,000 individually or $75,000 in the aggregate or any commitment or transaction of the type described in Section 2.13 hereof 100,000 in any case by the Company, except for (i) the contemplated Company or Distributions, (ii) obligations arising under any Outbound License Agreement and (iii) payments to outside counsel (and other legal service providers) for legal representation of its Subsidiariesthe Company in connection with the transactions contemplated by this Agreement;
(d) payment, discharge, waiver or satisfaction, in any amount in excess of $25,000 in any one case, or $75,000 in the aggregate, 100,000 of any claim, liabilityLiability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance SheetSheet or made in the ordinary course of business consistent with past practice;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer ) of the Company or any of its Subsidiaries (whether or not covered by insurance);
(f) material employment dispute, including claims or matters raised by any individual, Governmental Entity, Entity or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(h) adoption of or change in any Tax accounting method or material Tax election, entering into any closing agreement in respect of Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation by the Company or any of its Subsidiaries of any of its assets (whether tangible or intangible) and liabilities (including deferred revenue), including writing down the value of inventory or writing off notes or accounts receivablereceivable exceeding $10,000 in the aggregate, other than in the ordinary course of business consistent with past practice or in connection with the preparation of financial statements and audits of the Company by KPMG and PWC;
(j) other than the contemplated Company Distributions, any 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 of any SubsidiaryCommon Stock, or any split, combination or reclassification in respect of any shares of Company Capital Common Stock 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 Stock or the capital stock of any SubsidiaryCommon Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Common 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 and except for any cash-out of Company Options contemplated by this Agreement;
(k) material other than the contemplated Company Distributions, increase in or other change to the salary salary, wage rates or other compensation (including equity-based compensation) payable or to become payable by the Company or to any of its Subsidiaries to any of their respective officers, directors, employees, consultants Employees or advisorsIndependent Contractors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity cash or other propertyequity) by the Company or any of its Subsidiaries of a severance payment, change of control termination payment, termination change in control payment, bonus or other additional salary salary, special remuneration or compensation (including any equity-based compensation) to any such person, except payments made to non-officer Employees or to Independent Contractors in the ordinary course of business consistent with past practice or required under the terms of any Contract to which the Company is a party;
(l) any termination or extension, or material waiver, amendment or modification of the terms of any 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 which it or any of their respective assets are bound;
(m) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company or any of its SubsidiariesCompany, including the sale of any accounts receivable of the Company or any of its SubsidiariesCompany, or any creation of any security interest in such assets or properties, except for licenses to customers in the ordinary course of business;
(nm) material loan by the Company or any of its Subsidiaries to any PersonPerson (other than routine expense advances to employees or consultants of the Company in the ordinary course of business), 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;
(n) incurring by the Company of any Indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any Indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances or reimbursements to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) 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 Company or any of its SubsidiariesCompany, including any waiver, release or other compromise of any account receivable of the Company other than in the ordinary course of business or any of its Subsidiariestotaling $10,000 or less;
(qp) commencement or settlement of any lawsuit lawsuit, claim, action, demand, complaint, investigation or other proceeding by the Company or any of its SubsidiariesCompany, the commencement, settlement, notice of or, to the Knowledge of the Company, threat of any lawsuit unasserted claim, lawsuit, or proceeding or other investigation against the Company or relating to any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(rq) written notice of any claim or potential claim of ownership, (i) an ownership or other interest or right by any person other than the Third Party in Company or any of its Subsidiaries of the Company Owned Intellectual Property owned by Rights, or developed or created by the Company or any of its Subsidiaries or of (ii) infringement by the Company or any of its Subsidiaries of any other PersonThird Party’s Intellectual PropertyProperty Rights;
(sr) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its SubsidiariesCompany, of 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 Stock or shares of capital stock of any of its SubsidiariesCommon Stock, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Capital Common Stock upon the exercise of Company Options or Company Warrants or options issued under the conversion of Company Preferred Stock Plan or the grant of options to purchase Company Common Stock to employees Options listed on Section 2.2(c) of the Company under the Plan Disclosure Schedule;
(s) except with respect to non-exclusive license agreements entered into in the ordinary course of business and consistent with past practice;
(t) , (i) sale, lease, license or transfer of any Company Intellectual Property Rights or execution, modification or amendment of any agreement with respect to Company Intellectual Property Rights with any Person or with respect to the Technology or Intellectual Property Rights of any Person except in the ordinary course of business business, consistent with past practicepractices, or (ii) purchase or license of any Technology or Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Technology or Intellectual Property Rights of any Person, other than non-exclusive, end-user licenses for the Company’s products entered into Person except in the ordinary course of business, (iii) agreement or material modification or material amendment of an existing agreement with respect to the development of any Intellectual Property Technology with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into party except in the ordinary course of business, or (iv) change material reduction in pricing or royalties set or charged by the Company or any of to its Subsidiaries to their respective customers or licensees except as contemplated by an Outbound License Agreement or in materially increase the pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights to the Company except in the ordinary course of business consistent with past practiceas contemplated by an Inbound License Agreement;
(ut) agreement or adverse modification (other than any immaterial modification) to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology Technology of the Company or any of its SubsidiariesCompany;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(wu) 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 Subsidiariesamendment, modification, violation or termination hereof;
(xv) 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 (except in the ordinary course of business that are not material to the Company) 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 (except in the ordinary course of business that are not material to the Company) or any equity securities that are materialthereof, individually or in the aggregate, to the business of the Company otherwise establish or acquire any of its SubsidiariesSubsidiary;
(yw) 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;
(zi) adoption, amendment or termination of any Company Employee Plan, (ii) execution or amendment of any Employee Agreement, or payment or agreement by the Company Agreement (other than job offers and agreements for new hires who are below director level seniority consistent with past practice) 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 Independent Contractor Agreement (including any equity-based compensation) of any Employee, other than non-material increases with independent contractors or consultants in the ordinary course of business as conducted on the Balance Sheet Date and consistent with past practicepractices that will or may result in liabilities of less than $100,000), or (iii) other than the contemplated Company Distributions, declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity or otherwise) by the Company of a severance payment, termination payment, bonus, special remuneration, other additional salary, fringe benefits (cash, equity or otherwise) or compensation (including equity-based compensation) to any Employee;
(aax) execution any action to accelerate the vesting schedule of any strategic alliance, affiliate Company Options or joint marketing arrangement or agreement Company Common Stock (other than the acceleration of all vesting of Company Options in connection with the transactions contemplated by the Company or any of its Subsidiariesthis Agreement);
(bby) hiring, promotionpromotion or demotion, demotion or termination or other change to the employment status or title of any employees; orof the Key Employees or any other employees who are of director level or greater seniority;
(ccz) alteration of any equity interest of the Company in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any equity interest;
(aa) cancellation or material amendment of any insurance policy of the Company;
(bb) agreement by the Company or any of its SubsidiariesCompany, or any officer or employees on behalf of the Company or any of its SubsidiariesCompany, to do any of the things described in the preceding clauses (a) through (bbaa) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement, Agreement and any Related Agreements and to which the Company is a party); or
(cc) event or condition of any Employment Related Agreements)character that has had or is reasonably likely to have a Company Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Rambus Inc)
No Changes. Since the 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) 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 or the organizational documents of any Subsidiaryof its Subsidiaries;
(c) expenditure, transaction capital expenditure 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 SubsidiariesSubsidiaries exceeding $10,000 individually or $50,000 in the aggregate;
(d) payment, discharge, waiver discharge or satisfaction, in any amount in excess of $25,000 5,000 in any one case, or $75,000 20,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise 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;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(f) 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 trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(h) change in any material election in respect of Taxes (as defined below), adoption of or change in any Tax accounting method or material Tax election, closing agreement in respect of Taxes, agreement or settlement of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes or a filing of any Return (as defined in Section 2.11(b) hereof);
(i) revaluation by the Company or any of its Subsidiaries 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 the capital stock of any SubsidiaryStock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, 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 the capital stock of any SubsidiaryStock, 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);
(k) 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 employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity cash or other propertyequity) 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) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any termination of its Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, or material waiver, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements)lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound, other than any agreement, contract, covenant, instrument, lease, license or commitment entered into, terminated, extended, amended or modified in the ordinary course of business where the amount involved does not exceed $5,000;
(m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, including including, but not limited to, 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, other than in the ordinary course of business where the amount involved does not exceed $5,000;
(n) material loan by the Company or any of its Subsidiaries to any Personperson or entity, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person person or entity or amendment to the terms of any outstanding loan agreement, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) 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 Company or any of its Subsidiaries, including any waiver, release write-off or other compromise of any account receivable of the Company or any of its Subsidiaries;
(q) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or, to the Knowledge of the CompanyCompany or the Principal Shareholders, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to their respective businesses, properties or assetsaffairs, or any reasonable basis for any of the foregoing;
(r) written notice of any claim or potential claim of ownership, interest or right by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property (as defined in Section 2.14 hereof) 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 Personperson’s Intellectual PropertyProperty (as defined in Section 2.14 hereof);
(s) issuance, grant, delivery, sale delivery or purchasesale, or proposal, contract or agreement to issue, grant, deliver, sell deliver or purchasesell, by the Company or any of its Subsidiaries, Subsidiaries of any shares of Company Capital Stock or shares of capital stock 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 Capital Stock of any of its Subsidiaries, or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, 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 ;
(t) other than in the ordinary course of business and consistent with past practice;
(t) where the amount involved does not exceed $5,000, (i) sale, lease, license or transfer of any Company Intellectual Property (as defined below) or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any Person person or entity or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practiceperson or entity, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of businessperson or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective its customers or licensees or in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property to the Company except or any of its Subsidiaries;
(u) other than in the ordinary course of business consistent with past practice;
(u) where the amount involved does not exceed $5,000, agreement or modification to any Material Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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 (as defined below) 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 business 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
(ccx) 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 (bbw) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement, any Related Agreements Agreement and any Employment the Related Agreements).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epicor Software Corp)
No Changes. Since From the Balance Sheet Date, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 hereofDate through the date of this Agreement, there has not been, occurred or arisen with respect to the Company and its Subsidiaries any:
(a) event or condition of any character that has had or could reasonably be expected to have a Material Adverse Effect;
(b) material transaction or commitment by the Company or any of its Subsidiaries or relinquishment of any material right by the Company or any of its Subsidiaries, except in the ordinary course of business as conducted on that date and consistent with past practicespractice;
(bc) modifications, amendments or changes to the Charter Documents or 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 SubsidiariesDocuments;
(d) payment, discharge, release, waiver or satisfactionsatisfaction of any claim or right, or Liability in any an amount in excess of $25,000 10,000, in any one case, or $75,000 25,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities claims and rights or Liabilities properly reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material loss of a customer or supplier of the Company or any of its Subsidiaries (in each case, whether or not covered by insurance);
(f) employment disputedispute or lawsuits, including including, but not limited to, demands, 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 trouble issue or 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 with respect to action, and unlawful wage and hour practices under the Company or any of its SubsidiariesFair Labor Standards Act and applicable state and local laws;
(g) adoption of or change in the accounting methods policies or practices procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates) by the Company , or any of its Subsidiaries other than as required by GAAPbilling and invoicing policies);
(h) adoption of or change in any material Tax accounting method method, making of or change in any material Tax election, settlement or compromise of any Tax claim or assessment, entering into any closing agreement in respect of Taxes, settlement filing or amending of any Tax Return, surrendering of any right to claim or assessmenta refund of Taxes, or consent to the waiver or extension or waiver of the limitation limitations period applicable to for any Tax claim or assessment;
(i) 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;
(ji) declaration, setting aside 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 of any SubsidiaryCommon Stock, or (ii) any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or (iii) any issuance or authorization of any issuance of any other securities in respect of, in lieu of of, or in substitution for shares of of, Company Capital Stock or the capital stock of any SubsidiaryCommon Stock, or (iv) any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Common Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(kj) 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 (whether in cash, equity or other propertyi) 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 waiveramendment, amendment waiver or modification of the terms terms, of any agreementSpecified Contract not specifically required by the terms thereof, contract(ii) breach of or default under any Specified Contract or the occurrence of any event or condition which, covenantwith the giving of notice or the passage of time or both, instrument, lease could constitute such a breach or default or (including, without limitation, all Lease Agreements), license or commitment iii) any renewal of any Specified Contracts prior to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are boundexisting renewal dates;
(mk) any issuance or authorization of any issuance of any other securities in respect of, in lieu of, or in substitution for shares of Company Common Stock;
(l) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest Lien in such assets or propertiesproperties other than non-exclusive licenses of, or agreements to provide on a hosted basis, any Company Product to customers pursuant to agreements that have been entered into in the ordinary course of business consistent with past practice that do not differ in any material respect from the Standard Form Agreements;
(nm) material loan by the Company or any of its Subsidiaries to any Person, or purchase forgiveness by the Company or any of its Subsidiaries of any debt securities of loan to any Person or amendment to the terms of any outstanding loan agreementPerson, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) incurring by the Company or any of its Subsidiaries of any material indebtedness, amendment of the terms of any outstanding loan agreementIndebtedness, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness, 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 reasonable advances to employees current Employees not exceeding $2,000 for business travel and other business expenses in the ordinary course of business consistent with past practicespractice;
(pn) 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;
(q) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the commencement, settlement, written notice or, to the Knowledge of the Company, or threat of any lawsuit or proceeding or other investigation against or involving the Company or any of its Subsidiaries or relating to any of their respective businessesproperties, properties or assets, business or any reasonable basis for any of the foregoingaffairs;
(ro) written any claim or notice of any claim or potential claim of ownership, interest or right ownership by any person Person, other than the Company or any of its Subsidiaries Subsidiaries, of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries Property, or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual PropertyProperty Rights;
(sp) issuance, grant, delivery, sale issuance or purchasesale, or proposal, contract Contract or agreement undertaking to issue, grant, deliver, issue or sell or purchase, 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 Stock Common Stock, or shares (ii) any securities, warrants, options or rights to purchase any of capital stock the foregoing;
(q) sale, lease or license (or offer to sell, lease or license) of any Company or any of its Subsidiaries, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Capital Stock upon the exercise of Company Options ’ Intellectual Property Rights or Company Warrants Product 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 the ordinary course of business and consistent with past practice;
(t) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment execution of any agreement with respect to any Company Intellectual Property or Company Product with any Person or with respect to the Intellectual Property Rights or Technology of any Person except (other than non-exclusive licenses of, or agreements to provide on a hosted basis, any Company Product, to customers pursuant to agreements that have been entered into in the ordinary course of business consistent with past practicepractice that do not differ in any material respect from the Standard Form Agreements), or (ii) purchase or license of any Intellectual Property Rights or execution, modification Technology or amendment execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person, Person (other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of businessGenerally Commercially Available Code), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party, (v) agreement or modification or amendment of an existing agreement with respect regard to the development of any Intellectual Property with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (ivv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective 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 except or any of its Subsidiaries (other than changes in pricing or royalties pursuant to agreements in effect as of the date of this Agreement that are made in the ordinary course of business and consistent with past practice);
(ur) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, commissions, fees, fringe benefits or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to, or in respect of, any of their respective 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 of a notice payment, severance payment, leave approval or payment, Change in 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, collective bargaining agreement, or any Merger bonus plan or any similar plan;
(s) agreement or modification to of any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights right of any type or scope with respect regard to any products Company Intellectual Property or technology Company Product;
(t) increase in or alteration to the indemnification obligations of the Company or any of its Subsidiaries to any Employee;
(u) execution, termination or amendment of any Employee Agreement;
(v) the hiring of any individual, termination or resignation of any Employee or contractor, including any officer of the Company or any of its Subsidiaries, the promotion, demotion or other change to employment status or title of any officer of the Company or any of its Subsidiaries, or the resignation or removal of any member of the board of directors of the Company or any of its Subsidiaries;
(vw) event acceleration or condition delay in the payment of, or agreement to any change in the payment terms of, any accounts payable or other Liabilities or accounts receivable or notes payable, or agreement do anything that would have the effect of any character that has had or is reasonably likely cause the Company’s working capital position to have a Company Material Adverse Effectdiffer from historical levels and trends;
(wx) issuance or agreement to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company or any of its Subsidiaries, or waiver or release of any right or claim of the Company or any of its Subsidiaries;
(y) purchase or sale of any interest in real property, granting of any security interest in any real property 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;
(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 business 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
(ccaa) agreement or commitment by the Company or any of its Subsidiaries, or any officer or employees Employee on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (bb) z), inclusive, of this Section 2.10 3.9 (other than negotiations with Parent and its representatives Representatives regarding the transactions contemplated by this Agreement, any Related Agreements Agreement and any Employment Related Agreements).
Appears in 1 contract
No Changes. Since Except as set forth in Section 2.10 of the Disclosure Schedule, (a) since the Balance Sheet Date, except as expressly permitted under, required neither the Company nor any of its Subsidiaries has been subject to any event or specifically consented suffered any change that has had or is reasonably expected to by Parent pursuant have a Company Material Adverse Effect and (b) since the Balance Sheet Date but prior to Section 4.1 or Section 4.3 the date hereof, there has not been, occurred or arisen anyneither the Company nor any of its Subsidiaries has:
(ai) entered into any transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(bii) entered into any modifications, amendments or changes to the Company’s Charter Documents or the organizational documents of any Subsidiary;
(ciii) made any capital 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 Subsidiariesindividually;
(div) paymentpaid, dischargedischarged, waiver waived or satisfactionsatisfied, in any amount in excess of $25,000 75,000 in any one case, or $75,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise 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;
(ev) suffered any destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(fvi) been subject to any material employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding union, regarding, claiming or alleging labor trouble or claim of trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(gvii) adoption adopted or change in changed their accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(hviii) adoption of adopted or change in changed any Tax accounting method or material Tax election, closing agreement election in respect of Taxes, adopted or changed any accounting method in respect of Taxes, entered into an agreement or settlement of any Tax claim or assessmentassessment in respect of Taxes, or extension extended or waiver of waived the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(iix) revaluation by the Company or any of its Subsidiaries of any of its assets (whether tangible or intangible), including writing written down the value of inventory or writing written off notes or accounts receivablereceivable in excess of $75,000 in any one case;
(jx) declarationdeclared, setting set aside or payment of paid a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any Subsidiary, or approved any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any Subsidiary, or approved 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 the capital stock of any Subsidiary, or any direct directly or indirect repurchaseindirectly repurchased, redemptionredeemed, or other acquisition by the Company of acquired 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;
(kxi) material increase other than in or other change to the ordinary course of business (A) increased the salary or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any of their respective officers, directors, employees, employees or consultants or advisors(B) declared, paid or the declaration, payment or commitment or obligation of any kind for the payment committed to pay (whether in cash, equity cash or other propertyequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus bonus, special remuneration or other additional or similar salary or compensation to any such person;
(l) any termination or extension, or material waiver, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreementsincluding equity based compensation), license or commitment in each case to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are boundofficers, directors, employees or consultants;
(mxii) saleentered into, leaseamended or terminated any Material Contract to which they are a party other than in the ordinary course of business;
(xiii) sold, subleaseleased, license licensed or other disposition otherwise disposed of any of the their material assets (whether tangible or intangible) or properties other material properties, except for agreements with customers entered into in the ordinary course of the Company or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of business;
(xiv) created any security interest in such any of their assets or propertiesproperties (whether tangible or intangible);
(nxv) material made any loan by the Company to or guaranteed any of its Subsidiaries to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities indebtedness of any Person or amendment to the terms of any outstanding loan agreement, (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) incurring by the Company ), or purchased any of its Subsidiaries debt securities of any material indebtedness, Person or entered into any amendment of to the terms of any such outstanding loan agreement;
(xvi) incurred any indebtedness for borrowed money (other than under outstanding loan agreements), amended the terms of any such outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance issued or sale of sold 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 practicesSubsidiaries;
(pxvii) waiver waived or release of released any material right or claim of the Company or any of its Subsidiariesmaterial claim, including any waiver, release or other compromise of any significant account receivable of the Company or any of its Subsidiaries;
(qxviii) commencement commenced or settlement of settled any lawsuit by lawsuit, or other formal investigation against the Company or any of its SubsidiariesSubsidiaries relating to any of their businesses, the commencementproperties or assets, settlement, notice or, to the Knowledge of the Company, received notice of the threat of any such lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoingformal investigation;
(rxix) received any formal written notice of any claim or potential claim of with respect to the ownership, interest or right by any person Person other than the Company or any of its Subsidiaries of in 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;
(sxx) issuanceexcept for issuances of Company Capital Stock upon the exercise of Company Options issued under the Plan, grantissued, deliverysold, sale transferred or purchasegranted, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of (A) 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 (B) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, 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 ;
(xxi) other than Standard Form Agreements entered into in the ordinary course of business and consistent with past practice;
(tA) (i) salesold, leaseleased, license licensed or transfer of transferred any Company Intellectual Property or executionexecuted, modification modified or amendment of amended any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practicePerson, (B) purchased or (ii) purchase or license of licensed any Intellectual Property or executionexecuted, modification modified or amendment of amended any agreement with respect to the Intellectual Property of any Person, other than non-exclusive, end-user licenses for the Company’s products (C) entered into in the ordinary course of business, (iii) any agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (ivD) change in changed the pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective its customers or licensees or in the pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except or any of its Subsidiaries, in each case (A) – (D), other than in the ordinary course of business consistent with past practice, not to exceed $75,000 in any one case;
(uxxii) entered into any agreement (other than Standard Form Agreements entered into in the ordinary course of business) or modification to any Material 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 products Company Products or technology Technology of the Company or any of its Subsidiaries, except for those Contracts entered in the ordinary course of business consistent with past practice in an amount not to exceed $75,000 in any one case;
(vxxiii) event purchased or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) purchase or sale of sold any interest in real property, granting of granted any security interest in any real property property, entered into or renewed, amended or modified any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its Subsidiariesproperty;
(xxxiv) acquisition by the Company acquired, or any of its Subsidiaries or agreement by the Company or any of its Subsidiaries agreed 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 acquired or agreement agreed to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or any of its Subsidiaries;
(yxxv) grant by the Company adopted 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 amended any Company Employee Plan, execution or amendment of executed or amended any Employee Agreement, or payment or agreement by Agreement (other than the execution of 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 practicestandard offer letter);
(aaxxvi) execution of executed any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or agreement, in each such case, in an amount in excess of $75,000 in any of its Subsidiariesone case;
(bbxxvii) hiringother than in connection with the transactions contemplated by this Agreement, promotionentered into any action to accelerate the vesting schedule of any Company Options;
(xxviii) hired, demotion promoted, demoted or termination terminated or other change to otherwise changed the employment status or title of any employeesEmployees, other than in the ordinary course of business;
(xxix) issued or agreed to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $75,000; or
(ccxxx) agreement by the Company or any of its Subsidiaries, or any officer or employees on behalf of the Company or any of its Subsidiaries, agreed to do any of the things described in the preceding clauses (ai) through (bbxxix) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement, any Related Agreements Agreement and any Employment Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Autodesk Inc)
No Changes. Since the 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 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 or the organizational documents of any Subsidiary;
(c) expenditure, transaction or commitment exceeding $25,000 20,000 individually or $75,000 50,000 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, in any amount in excess of $25,000 20,000 in any one case, or $75,000 50,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise 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;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(f) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAPSubsidiaries;
(h) adoption of or change in any Tax accounting method or material Tax election, closing agreement election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(i) 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) except as set forth in Section 2.10(j) of the Disclosure Schedule, any 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 of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital Stock 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 Stock 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 Company Common Stock subject to vesting;
(k) material except as expressly provided for in this Agreement, including without limitation, the Company’s obligation to pay deferred compensation as provided for in Section 1.6(b)(i)(i) of this Agreement, 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 (whether in cash, equity cash or other propertyequity) 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) material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any termination of its Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, or material waiver, amendment or modification of the terms of any material agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements)lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound;
(m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, 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 propertiesproperties other than in the ordinary course of business consistent with past practices;
(n) material loan by the Company or any of its Subsidiaries to any PersonPerson except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices, 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, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) 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 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;
(q) (i) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the or (ii) 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 Subsidiaries or relating to any of their respective businesses, properties or assets, or to the Knowledge of the Company, any reasonable basis for any of the foregoing;
(r) written notice of any claim or potential 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 proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of 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 any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for (i) issuances of Company Capital Stock upon the exercise of Company Options or Company Warrants or (ii) prior to the conversion of Company Preferred Stock or date hereof, the grant of restricted Company Common Stock or options to purchase Company Common Stock to employees of the Company under the Plan in the ordinary course of business and consistent with past practice;
Plan; (t) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practice, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, other than 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 with a third party, party (other than non-exclusive, end-user licenses for the Company’s products entered entering into in the ordinary course of businessEmployee Proprietary Information Agreements with new employees), or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practice;
(u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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 business 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
Sources: Merger Agreement (Harmonic Inc)
No Changes. Since the Balance Sheet DateDecember 31, 2013, 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 or organizational documents of any Subsidiaryexcept as expressly contemplated by this Agreement;
(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, in any amount in excess of $25,000 in any one case, or $75,000 in the aggregate, satisfaction of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiariesotherwise), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(ed) 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);
(fe) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble disputes or claim claims of wrongful discharge or other unlawful employment or labor practice or action with respect to by the Company or any of its SubsidiariesCompany;
(gf) adoption of or change in accounting methods policies or practices 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 or any of its Subsidiaries other than as required by GAAPCompany;
(hg) making of or change in any Tax election, adoption of or change in any Tax accounting method method, settlement or material compromise of any Tax election, claim or assessment or entering into any closing agreement in respect of Taxes, settlement filing of any amended Tax claim or assessmentReturn, or consent to the waiver or extension or waiver of the limitation limitations period applicable to for any Tax claim or assessment;
(i) 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;
(jh) 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 of any SubsidiaryStock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, 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 the capital stock of any SubsidiaryStock, 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;
(ki) 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 (whether in cash, equity or other propertyi) 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 waiveramendment, amendment waiver or modification of the terms terms, of any agreementMaterial 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, contractwith the giving of notice or the passage of time or both, covenant, instrument, lease (including, without limitation, all Lease Agreements), license could constitute such a breach or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bounddefault;
(mj) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its SubsidiariesCompany, including including, but not limited to, the sale of any accounts receivable of the Company or any of its SubsidiariesCompany, or any creation of any security interest Lien in such material assets or propertiesmaterial 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;
(nk) material loan by the Company or any of its Subsidiaries to any Person, or purchase incurring by the Company of any Indebtedness for borrowed money, guaranteeing by the Company of any Indebtedness for borrowed money, issuance or any of its Subsidiaries sale of any debt securities of any Person the Company or amendment to the terms guaranteeing of any outstanding loan agreementdebt securities of others, except for advances to employees Employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) 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;
(pl) 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 SubsidiariesCompany;
(qm) 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 Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoingaffairs;
(rn) written notice of any claim issuance or potential 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 purchasesale, or proposal, contract Contract or agreement undertaking to issue, grant, deliver, sell issue or purchasesell, 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 subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances except, in either case, in accordance with agreements evidencing Company Options;
(o) receipt by the Company of Company Capital Stock upon written notice, or to 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 Knowledge of the Company under other notice or threat, of any claim or potential claim of ownership by any Person other than the Plan in Company of Company IP or of infringement by the ordinary course Company of business and consistent with past practiceany other Person’s Intellectual Property Rights;
(tp) (i) sale, lease, sale or exclusive license or transfer of any Company Intellectual Property IP or execution, modification Company Products or amendment execution of any agreement with respect to the Company Intellectual Property IP or Company Products with any Person or with respect (other than non‑exclusive licenses of the Company Products to the Intellectual Property of any Person except end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practicepractices that do not materially differ in substance from the Standard Form Agreements), or (ii) purchase or exclusive license of any Intellectual Property Rights or execution, modification Technology or amendment execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person, Person (other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of businessShrink‑Wrap Software), (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 partyparty pursuant to which the Company does not own all right, other than non-exclusive, end-user licenses for title and interest in and to the Company’s products entered into in the ordinary course of businessIntellectual Property Rights or Technology developed, or (iv) change in pricing or royalties set or charged by the Company or any of to its Subsidiaries to 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 except (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practicepractices);
(uq) agreement hiring or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights termination of any type employee of the Company, promotion, demotion or scope with respect other change to the employment status or title of any products or technology office of the Company or resignation or removal of any director of its Subsidiariesthe Company;
(vr) (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 condition effect of any character that has had or is reasonably likely to have a Company Material Adverse 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, Effect with respect to the business 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 employeesCompany; 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
Sources: Merger Agreement (Linkedin Corp)
No Changes. Since the 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 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 or the 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, in any amount in excess of $25,000 in any one case, or $75,000 250,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise 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;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance)Deleted;
(f) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(h) adoption of or change in any Tax accounting method or material Tax election, closing agreement election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(i) revaluation by the Company or any of its Subsidiaries of any of its assets (whether tangible or intangible), including except for the writing off or down of the value of inventory or writing off of notes or accounts receivable, fixed assets and investments in Subsidiaries;
(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 the capital stock of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital Stock 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 Stock 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 Company Unvested Shares or the Related Agreements;
(k) material except as expressly provided for in this Agreement, an 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 (whether in cash, equity cash or other propertyequity) 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) Material Contract to which the Company or any termination of its Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, or material waiver, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements), license or commitment Material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound;
(m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, 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 propertiesproperties other than in the ordinary course of business consistent with past practices;
(n) material loan by the Company or any of its Subsidiaries to any PersonPerson except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices, 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, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) 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 Company or any of its Subsidiaries, including any waiver, release or other compromise of any account receivable of the Company or any of its SubsidiariesVoD Business;
(q) (i) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the or (ii) commencement, settlement, notice or, to the Knowledge of the CompanyCompany or any of its Subsidiaries, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets, or to the Knowledge of the Company or any of its Subsidiaries, any reasonable basis for any of the foregoing;
(r) written notice of any claim or potential 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 proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of 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 any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for (i) issuances of Company Capital Stock upon the exercise of Company Options or Company Warrants or the conversion of Company Preferred Stock or (ii) prior to the date hereof, the grant of restricted Company Common Stock or options to purchase Company Common Stock to employees of the Company under the Plan in the ordinary course of business and consistent with past practicePlan;
(t) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practice, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, other than 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 with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practice;
(u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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 business 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
Sources: Merger Agreement (Harmonic Inc)
No Changes. Since the 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 or Section 4.3 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) 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 or 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 Subsidiariessubsidiaries other than as contemplated by this Agreement;
(db) capital expenditure or commitment by the Company exceeding $50,000 individually or $200,000 in the aggregate;
(c) payment, dischargedischarge or satisfaction of any individual claim, waiver liability or satisfaction, in any amount obligation in excess of $25,000 in any one case, or $75,000 in the aggregate, of any claim, liability, right or obligation 50,000 (absolute, accrued, asserted or unasserted, contingent or otherwise otherwise) of the Company or any of its Subsidiaries)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;
(ed) destruction of, material damage to, or loss of any material assets (whether tangible or intangible), material business or material customer ) of the Company or any of its Subsidiaries subsidiaries (whether or not covered by insurance);
(fe) 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 trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(gf) adoption of or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(hg) adoption of or change in any Tax election or any Tax accounting method or material Tax electionmethod, entering into any closing agreement in with respect of to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any material Tax claim or assessmentassessment or filing of any amended Tax Return;
(ih) revaluation by the Company or any of its Subsidiaries subsidiaries of any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivableAccounts Receivable (other than depreciation or amortization of any asset in the ordinary course of business consistent with past practices);
(ji) 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 the capital stock or other equity 105132706 v11 interests of any Subsidiaryof the Company’s subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock or other equity interests of any Subsidiaryof 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 Stock or the capital stock or other equity interests of any Subsidiaryof 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 Subsidiary of the Company’s subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), 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 terms of the underlying 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) material increase in or other change to the salary or other compensation (including equity based compensation whether payable in cash, securities or otherwise) payable or to become payable by the Company or to any of its Subsidiaries to any of their respective officers, directors, employees, consultants or advisorsemployees, or the declaration, adoption, agreement, contract, payment or commitment or obligation of any kind for the payment (whether in cash, equity cash or other propertyequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, or termination payment, bonus or other additional salary or compensation to any such personPerson, 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) any termination or extension, or material waiver, amendment or modification of the terms of any 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 which it or any of their respective assets are bound;
(m) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company or any of its Subsidiariessubsidiaries outside of the ordinary course of business, including the sale of any accounts receivable of the Company or any of its SubsidiariesAccounts Receivable, or any creation of any security interest in such material assets or properties, other than Permitted Liens;
(nm) material extension of credit or any loan by the Company or any of its Subsidiaries subsidiaries to any Person, or purchase by the Company or any of its Subsidiaries subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreementPerson, except for advances to 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;
(on) incurring incurrence by the Company or any of its Subsidiaries subsidiaries of any material indebtednessIndebtedness, amendment of the terms of any outstanding loan agreementIndebtedness (or any Contract evidencing such Indebtedness) to which the Company is a party, guaranteeing by the Company or any of its Subsidiaries subsidiaries of any indebtednessIndebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries subsidiaries, or guaranteeing of any Indebtedness or debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business business, consistent with past practices;
(po) affirmative waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any account receivable of the Company or any of its Subsidiaries;
Accounts Receivable; ▇▇▇▇▇▇▇▇▇ ▇▇▇ (q▇) commencement or settlement of any lawsuit Legal Proceeding by the Company or any of its Subsidiariessubsidiaries, 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 Company, any of its subsidiaries or any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) written notice of any claim or potential 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 proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of 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 any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, 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 the ordinary course of business and consistent with past practice;
(t) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practice, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, other than 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 with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practice;
(u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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 business 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
Sources: Draft Agreement (Rovi Corp)
No Changes. Since Except as set forth on Section 3.10 of the Disclosure Schedule, since the 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) 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 Company or organizational documents relinquishment of any Subsidiarymaterial right by the Company;
(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, release, waiver or satisfactionsatisfaction of any claim or right, or Liability in any an amount in excess of $25,000 50,000, in any one case, or $75,000 150,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), 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;
(ed) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material loss of a customer or supplier of the Company or any of its Subsidiaries (in each case, whether or not covered by insurance);
(fe) 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 trouble issue or 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 with respect to the Company Company;
(f) adoption or change in accounting policies or procedures (including any of its Subsidiarieschange 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) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(h) adoption of or change in any Tax accounting method or material Tax election, settlement or compromise of any Tax claim or assessment, entering into any closing agreement in respect of Taxes, settlement filing of any amended Tax claim or assessmentreturn, or consent to the waiver or extension or waiver of the limitation limitations period applicable to for any Tax claim or assessment;
(i) 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 Stock or the capital stock of any SubsidiaryShare Capital, or (ii) any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryShare 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 Stock or the capital stock of any SubsidiaryShare Capital, or (iv) 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)Share Capital;
(ki) 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 (whether in cash, equity or other propertyA) 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 waiveramendment, amendment waiver or modification of the terms terms, of any agreementMaterial Contract, contractor (B) breach of or default under any Material Contract or the occurrence of any event or condition which, covenantwith the giving of notice or the passage of time or both, instrument, lease (including, without limitation, all Lease Agreements), license could constitute such a breach or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bounddefault;
(mj) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its SubsidiariesCompany, including the sale of any accounts receivable of the Company or any of its SubsidiariesCompany, or any creation of any security interest Lien in such assets or propertiesproperties other than non-exclusive licenses of the Company Services to end-users pursuant to agreements that have been entered into in the Ordinary Course of Business;
(nk) material loan by the Company or any of its Subsidiaries to any Person, or purchase forgiveness by the Company or any of its Subsidiaries of any debt securities of loan to any Person or amendment to the terms of any outstanding loan agreementPerson, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) incurring by the Company or any of its Subsidiaries of any material indebtedness, amendment of the terms of any outstanding loan agreementIndebtedness, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness, 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 reasonable advances to employees 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;
(pl) 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;
(q) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the 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 any of its Subsidiaries or relating to their respective businessesproperties, properties or assets, business or any reasonable basis for any of the foregoingaffairs;
(rm) written notice of any claim or potential claim of ownership, interest or right ownership by any person Person, other than the Company or any Company, 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 PropertyProperty Rights;
(sn) issuance, grant, delivery, sale issuance or purchasesale, or proposal, contract Contract or agreement undertaking to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, of 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 any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, 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 the ordinary course of business and consistent with past practiceShare Capital;
(to) (i) sale, lease, license increase in or transfer of any Company Intellectual Property decrease in or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect other change to the Intellectual Property of any Person except in salary, wage rates, bonuses, commissions, fees fringe benefits or other compensation (including equity based compensation) payable or to become payable by the ordinary course of business consistent with past practiceCompany to, or in respect of, any of its Employees, (ii) purchase declaration, payment or license commitment or obligation of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, other than non-exclusive, end-user licenses kind for the Company’s products entered into payment (whether in cash or equity or otherwise) by the ordinary course Company of businessa 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) agreement promise to pay any special bonus or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third partyspecial remuneration (whether payable in cash, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practice;
(u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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 business 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;
or (ziv) adoption, termination or amendment or termination of any Company Employee PlanPlan or collective bargaining agreement;
(p) increase in or alteration to the indemnification obligations of the Company to any Employee;
(q) execution, execution termination or amendment of any Employee AgreementAgreement (other than execution of the Company’s applicable standard offer letter, or payment or agreement each of the forms of which have been delivered by the Company Company);
(r) the hiring of any individual 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) termination of any Employee, other than non-material increases in including any officer of the ordinary course of business consistent with past practice;
(aa) execution of any strategic allianceCompany, 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 employeesofficer 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 by the Company that, if taken from and after the execution of this Agreement until the Closing, would be prohibited by Section 6.1 or Section 6.2; or
(ccu) agreement or commitment by the Company or any of its SubsidiariesCompany, or any officer or employees Employee on behalf of the Company or any of its SubsidiariesCompany, to do any of the things described in the preceding clauses (a) through (bbt) of this Section 2.10 3.10 (other than negotiations with Parent and its representatives Buyer regarding the transactions contemplated by this Agreement, any Related Agreements Agreement and any Employment Related Agreements).
Appears in 1 contract
Sources: Purchase Agreement (RR Media Ltd.)
No Changes. Since From and including the Balance Sheet DateDate to and including the date of this Agreement, except the Company and its Subsidiaries have conducted their respective businesses in the ordinary course consistent with past practice (other than as expressly permitted underotherwise contemplated hereby with respect to the termination of employees and incurring Transaction Expenses), required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 hereof, and there has not been, occurred or arisen any:
(a) Material Adverse Effect;
(b) material transaction or commitment by the Company or any of its Subsidiaries or relinquishment of any material right by the Company or any of its Subsidiaries, except in the ordinary course of business as conducted on that date and consistent with past practicespractice;
(bc) modifications, amendments or changes to the Charter Documents or the 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, release, waiver or satisfactionsatisfaction of any claim or right, or Liability in any an amount in excess of $25,000 50,000, in any one case, or $75,000 150,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business or in connection with the transactions contemplated by this Agreement of liabilities claims, rights and Liabilities properly reflected or reserved against in the Current Balance Sheet;
(e) 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 or any of its Subsidiaries (in each case, whether or not covered by insurance);
(f) 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 trouble issue or 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 with respect to the Company or any of its Subsidiaries;
(g) adoption or change in accounting methods policies or practices 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 or any of its Subsidiaries other than Subsidiaries, except as specifically required by GAAP;
(h) adoption of or change in any Tax accounting method or material Tax election, settlement or compromise of any Tax claim or assessment, entering into any closing agreement in respect of Taxes, settlement filing of any amended Tax claim or assessmentReturn, or consent to the waiver or extension or waiver of the limitation limitations period applicable to for any Tax claim or assessment;
(i) 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;
(ji) 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 any Capital Stock of any SubsidiarySubsidiary of the Company, or (ii) any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock any shares of Capital Stock of any SubsidiarySubsidiary of the Company, or (iii) 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 the capital stock any shares of Capital Stock of any SubsidiarySubsidiary of the Company, or (iv) any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or the capital stock any shares of Capital Stock of any Subsidiary of the Company (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in the case of clauses (iii) and (iv) in accordance with the agreements evidencing Company Options;
(kj) 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 (whether in cash, equity or other propertyA) 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 waiveramendment, amendment waiver or modification of the terms terms, of any agreementMaterial Contract not specifically required by the terms thereof, contractor (B) breach of or default under any Material Contract or the occurrence of any event or condition which, covenantwith the giving of notice or the passage of time or both, instrument, lease (including, without limitation, all Lease Agreements), license would reasonably be expected to constitute such a breach or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bounddefault;
(mk) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest Lien in such material assets or propertiesmaterial properties other than (i) Permitted Liens and (ii) 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 practice that do not materially differ in substance from the Standard Form Agreements;
(nl) material loan by the Company or any of its Subsidiaries to any Person, or purchase forgiveness by the Company or any of its Subsidiaries of any debt securities of loan to any Person or amendment to the terms of any outstanding loan agreementPerson, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) incurring by the Company or any of its Subsidiaries of any material indebtedness, amendment of the terms of any outstanding loan agreementIndebtedness, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness, 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 reasonable advances to employees current Employees not exceeding $2,000 for business travel and other business expenses in the ordinary course of business consistent with past practicespractice;
(pm) 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;
(q) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the 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 any of its Subsidiaries or relating to their respective businessesits properties, properties or assets, business or any reasonable basis for any of the foregoingaffairs;
(rn) written notice of any claim or potential claim of ownership, interest or right ownership by any person Person, other than the Company or any of its Subsidiaries 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 PropertyProperty Rights;
(so) issuance, grant, delivery, sale issuance or purchasesale, or proposal, contract Contract or agreement undertaking to issue, grant, deliver, sell issue or purchasesell, by the Company or any of its Subsidiaries, Subsidiaries of (i) any shares of Company Capital Stock or any shares of capital stock Capital Stock of any Subsidiary of its Subsidiaries the Company or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any shares of capital stock Capital Stock of any Subsidiary of its Subsidiariesthe Company, or (ii) any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, 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 the ordinary course of business and consistent with past practice;
(tp) (i) sale, lease, sale or license or transfer of any Company Intellectual Property or execution, modification Company Products or amendment execution of any agreement with respect to the Company Intellectual Property or Company Products with any Person or with respect to the Intellectual Property Rights or Technology of any Person except (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 practicepractice that do not materially differ in substance from the Standard Form Agreements), or (ii) purchase or license of any Intellectual Property Rights or execution, modification Technology or amendment execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person, Person (other than nonshrink-exclusivewrap, endclick-through or similar generally available commercial binary code end user licenses for the Company’s products entered into in the ordinary course of businesslicenses), (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, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective 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 except or any of its Subsidiaries (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practice) or (v) the sale or offer of Company Product at a discount, in each case, other than in the ordinary course of business consistent with past practice;
(q) (i) increase in or decrease in or other change to the salary, wage rates, bonuses, commissions, fees fringe benefits or other compensation (including equity based compensation) payable or to become payable by the Company 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 bonus, special remuneration or other additional 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, collective bargaining agreement, or the Management Acquisition Bonus Plan or any similar plan;
(r) increase in or alteration to the indemnification obligations of the Company to any Employee;
(s) 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 Made Available to Parent);
(t) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards;
(u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights the hiring of any type individual or scope with respect termination of any Employee, including any officer of the Company or any of its Subsidiaries, the promotion, demotion or other change to employment status or title of any products officer of the Company or technology any of its Subsidiaries, or the resignation or removal of any member of the Board of Directors of the Company or any of its Subsidiaries;
(v) event waiver or condition release of any character that has had material right or is reasonably likely to have a material claim of the Company Material Adverse Effector any of its Subsidiaries;
(w) purchase or sale of any interest in real property, granting of any security interest (other than Permitted Liens) in any real property 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;Company; or
(x) acquisition by the Company agreement 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 business 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 commitment by the Company or any of its Subsidiaries, or any officer or employees Employee on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (bbw) of this Section 2.10 4.9 (other than negotiations with Parent and its representatives Representatives regarding the transactions contemplated by this Agreement, any Related Agreements Agreement and any Employment Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
No Changes. Since (a) Except for specific actions or specific matters expressly contemplated by this Agreement (including the Balance Sheet Dateestablishment and implementation of the Company Severance Plan, except as expressly permitted underthe Parent Severance Plan, required or specifically consented to by Parent the Retention Plan and the Escrow Payment Plan and the payment of severance and other benefits pursuant to Section 4.1 5.13 or Section 4.3 hereofpursuant to the Change of Control Letter Agreements), between the date of the Current Balance Sheet and the date of this Agreement, there has not been, occurred or arisen any:
(ai) 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;
(bii) modifications, amendments or changes to the Charter Documents certificate of incorporation, bylaws or other organizational documents documents, as the case may be, 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;
(diii) changes in the Company’s or any of its Subsidiaries authorized capital structure;
(iv) capital expenditures or capital commitments by the Company or any of its Subsidiaries, either individually exceeding $50,000 or, with respect to the Company and its Subsidiaries as a whole, in the aggregate exceeding $100,000;
(v) payment, discharge, waiver discharge or satisfaction, in any amount in excess of $25,000 15,000 in any one case, or or, with respect to the Company and its Subsidiaries as a whole, $75,000 25,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiariesotherwise), other than paymentspayment, discharges discharge or satisfactions in the ordinary course of business satisfaction of liabilities reflected or reserved against in the Current Balance Sheet;
(evi) destruction of, damage to, revaluation by the Company or loss any of its Subsidiaries of any material of their respective assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(fvii) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by Subsidiaries, except pursuant to a change in GAAP;
(hviii) adoption of or change in any Tax accounting method or material Tax election, closing agreement in respect of Taxes, settlement of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation election by the Company or any of its Subsidiaries with respect to Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement by the Company and its Subsidiaries of any claim or assessment in respect of Taxes, or extension or waiver by the Company and its assets (whether tangible Subsidiaries of the limitation period applicable to any claim or intangible), including writing down the value assessment in respect of inventory or writing off notes or accounts receivableTaxes;
(jix) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in with respect of any to the Company Capital Stock or the capital stock of any SubsidiarySubsidiary Ownership Interest, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiarySubsidiary Ownership Interest, 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 the capital stock of any SubsidiarySubsidiary Ownership Interest, or any direct or indirect repurchase, redemption, repurchase or other acquisition by the Company of any shares of Company Capital Stock or the capital stock by any of its Subsidiaries of any Subsidiary Ownership Interest (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the Company Option Plans;
(kx) 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 its officers, directors, employees, consultants employees or advisors, advisors or the declaration, payment or commitment or obligation of any kind for the payment (whether in cashpayment, equity or other property) by the Company or any of its Subsidiaries Subsidiaries, of a severance payment, change of control payment, termination payment, bonus or other additional salary or compensation to any such person;
(lxi) any termination or termination, extension, or material waiver, amendment or modification of the terms of any material agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements)lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective its assets are bound;
(m) sale, lease, sublease, license or is bound other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, 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;
(n) material loan by the Company or any of its Subsidiaries 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, except for advances to employees for travel and business expenses than in the ordinary course of business consistent with past practices;
(oxii) sale, lease, license or other disposition of any of the material tangible assets or material tangible properties of the Company or any of its Subsidiaries;
(xiii) loan by the Company or any of its Subsidiaries to or capital investment in any Person, incurring by the Company or any of its Subsidiaries of any material indebtedness, amendment of the terms of any outstanding loan agreementindebtedness for borrowed money, guaranteeing by the Company or any of its Subsidiaries of any indebtednessindebtedness for borrowed money, 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;
(pxiv) knowing waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release write-off or other compromise of any account receivable of the Company or any of its Subsidiaries, in excess of $25,000 in any one case or $100,000 in the aggregate;
(qxv) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the Subsidiaries or commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against involving the Company or any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoingCompany;
(r) written notice of any claim or potential 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 proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of 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 any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, 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 the ordinary course of business and consistent with past practice;
(txvi) (i) sale, lease, sale or license or transfer of any Company Intellectual Property Technology or execution, modification or amendment execution of any agreement with respect to the Company Intellectual Property Technology with any Person person or entity or with respect to the Intellectual Property Technology of any Person except in the ordinary course of business consistent with past practicePerson, or (ii) purchase or license of any Intellectual Property Technology or execution, modification or amendment execution of any agreement with respect to the Intellectual Property Technology of any Person, other than 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 Technology with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective its customers or licensees or in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property Technology to the Company except in the ordinary course of business consistent with past practice;
(u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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 business 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
(ccxvii) any agreement by the Company or Company, any of its Subsidiaries, or any officer or employees employee on behalf of the Company or any of its Subsidiaries, Subsidiaries to do any of the things described in the preceding clauses (aa)(i) through (bba)(xvi).
(b) Except as set forth in Section 2.9(b) of this Section 2.10 the Disclosure Schedule, there has not been, occurred or arisen since the date of the Current Balance Sheet:
(other than negotiations with Parent and i) any destruction of, damage to or loss of any material assets (whether tangible or intangible) (whether or not covered by insurance), of the Company or any of its representatives regarding Subsidiaries in excess of $50,000 in the transactions contemplated by this Agreementaggregate;
(ii) to the Company’s Knowledge, any Related Agreements and loss of any Employment Related Agreements)material business, customer or partner;
(iii) to the Company’s Knowledge, any claim of wrongful discharge or other unlawful labor practice or action asserted against the Company or any of its Subsidiaries; or
(iv) any event or condition that has had or would be reasonably expected to have a Material Adverse Effect on the Company.
Appears in 1 contract
No Changes. Since the Balance Sheet DateJanuary 31, 2006, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 5.1 hereof, there has not been, occurred or arisen any:
(a) 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 or the 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, in any amount in excess of $25,000 50,000 in any one case, or $75,000 100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise 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 SheetSheets;
(ed) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(fe) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(gf) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(hg) adoption of or change in any Tax accounting method or material Tax election, closing agreement election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(ih) 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;
(ji) 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 of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital Stock 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 Stock 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 Company Unvested Shares;
(kj) 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, directors or employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity cash or other propertyequity) 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 waiver, amendment or modification of the terms of any 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 which it or any of their respective assets are bound;
(mk) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, 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, except in the ordinary course of business as conducted on that date and consistent with past practices;
(nl) material loan by the Company or any of its Subsidiaries 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, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(om) 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;
(pn) waiver or release of any material right or claim of the Company or any of its Subsidiaries, including any waiver, release write-off or other compromise of any account receivable of the Company or any of its Subsidiaries;
(qo) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or, to the Knowledge of the CompanyCompany or the Principal Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to any of their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(rp) written notice of any claim or potential 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 Personperson’s Intellectual Property;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of 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 any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, 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 the ordinary course of business and consistent with past practice;
(t) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practice, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, other than 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 with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practice;
(u) agreement or modification to any Material Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(vq) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse 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;
(xr) acquisition by the Company or any of its Subsidiaries Subsidiary or agreement by the Company or any of its Subsidiaries Subsidiary 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 business of the Company or any of its Subsidiaries;
(ys) grant by the Company or any of its Subsidiaries Subsidiary of any severance, change in control severance 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
(cct) 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 (bbs) of this Section 2.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement, any Related Agreements Agreement and any Employment Related Agreements).
Appears in 1 contract
No Changes. Since the Balance Sheet Date, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 Article V hereof, there has not been, occurred or arisen any:
(a) 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 or organizational documents of any SubsidiaryDocuments;
(c) expenditure, transaction or commitment exceeding $25,000 individually or $75,000 100,000 in the aggregate or any commitment or transaction of the type described in Section 2.13 3.16(a) hereof in any case by the Company or any of its SubsidiariesCompany;
(d) payment, discharge, waiver or satisfaction, in any amount in excess of $25,000 in any one case, or $75,000 100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its SubsidiariesCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance);
(f) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding union, regarding, claiming or alleging labor trouble or claim of trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiariesCompany;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(h) adoption of or change in any Tax accounting method or material Tax election, closing agreement election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(i) 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 Stock or the capital stock of any SubsidiaryStock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryStock, 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 the capital stock of any SubsidiaryStock, 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;
(ki) material increase in or other change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company or to any of its Subsidiaries to any of their respective officers, directors, employees, consultants employees or advisorsconsultants, or the (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity cash or other propertyequity) by the Company or any of its Subsidiaries of a severance payment, change of control payment, termination payment, bonus bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any such personof its respective officers, directors, employees or consultants;
(l) Contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any termination of its assets (whether tangible or intangible) are bound or any termination, extension, or material waiver, amendment or modification of the terms of any agreement, contractContract, covenant, instrument, lease (including, without limitation, all Lease Agreements)lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective assets are bound;
(m) sale, lease, sublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its SubsidiariesCompany, including the sale of any accounts receivable of the Company or any of its SubsidiariesCompany, or any creation of any security interest in such assets or properties;
(n) material loan by the Company or any of its Subsidiaries 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, (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchase by the Company of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) 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 obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(p) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release or other compromise of any account receivable of the Company or any of its SubsidiariesCompany;
(q) commencement or settlement of any lawsuit by the Company or any of its SubsidiariesCompany, the commencement, settlement, notice or, to the Knowledge knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or relating to any of its Subsidiaries or relating to their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) written notice of any claim or potential 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 purchasepurchase of, or proposal, contract Contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its SubsidiariesCompany, 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 subscriptions, warrants, options, rights or securities to acquire any of the foregoing, 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 issued under the Plan in the ordinary course of business and consistent with past practicePlan;
(t) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practicePerson, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, other than 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 with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of to its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practiceCompany;
(u) agreement or modification to any Material 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 products Company Products or technology Technology of the Company or any of its SubsidiariesCompany;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;
(w) purchase or sale of any interest in real property, granting of any security interest in any real property 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 SubsidiariesCompany;
(x) 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 business of the Company or any of its SubsidiariesCompany;
(y) grant by the Company or any of its Subsidiaries of any severance, change in control severance 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, adoption or amendment or termination of any Company Employee Plan, or execution or amendment of any Employee Agreement, or payment or agreement by Agreement (other than execution of 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 equitystandard at-based compensation) of any Employee, other than non-material increases in the ordinary course of business consistent with past practicewill offer letter);
(aa) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its SubsidiariesCompany;
(bb) hiring, promotion, demotion or termination or other change to the employment status or title of any employees;
(cc) alteration of any interest of the Company in a Subsidiary or 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;
(ee) issuance or agreement to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $25,000 individually or $100,000 in the aggregate; or
(ccff) agreement by the Company or any of its SubsidiariesCompany, or any officer or employees on behalf of the Company or any of its SubsidiariesCompany, to do any of the things described in the preceding clauses (a) through (bbee) of this Section 2.10 3.10 (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement, any Related Agreements Agreement and any Employment Related Agreements).
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Supergen Inc)
No Changes. Since the Balance Sheet DateSeptember 30, except as expressly permitted under, required or specifically consented to by Parent pursuant to Section 4.1 or Section 4.3 hereof2000, there has not been, occurred ---------- or arisen any:
(a) 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 Articles of Incorporation or organizational documents Bylaws of any Subsidiarythe Company;
(c) expenditure, transaction capital expenditure or capital expenditure commitment by the Company exceeding $25,000 10,000 individually or $75,000 25,000 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 Subsidiariesaggregate;
(d) payment, discharge, waiver discharge or satisfaction, in any amount in excess of $25,000 10,000 in any one case, or $75,000 25,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiariesotherwise), 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;
(e) destruction of, damage to, to or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or loss of any customer (whether direct or indirect) accounting for more than 10% of its Subsidiaries gross revenue of the Company on a trailing twelve month basis (in each case, whether or not covered by insurance);
(f) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiariesaction;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its Subsidiaries other than as required by GAAP;
(h) change in any election in respect of Taxes (as defined below), adoption of or change in any Tax accounting method or material Tax election, closing agreement in respect of Taxes, agreement or settlement of any Tax claim or assessmentassessment in respect of Taxes, or extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes;
(i) 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 receivableassets;
(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 the capital stock of any Subsidiarycommon stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the capital stock of any SubsidiaryCommon 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 the capital stock of any SubsidiaryCommon Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Common Stock or the capital stock of any Subsidiary (or options, warrants options or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options and distributions to Stockholders for income tax purposes pursuant to Section 5.1(f);
(k) material increase in or other change to the salary or other compensation payable or to become payable by the Company or to any of its Subsidiaries to any of their respective officers, directors, employees, consultants employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether 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 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 waiver, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease (including, without limitation, all Lease Agreements)lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their respective its assets are bound, except those entered into in the ordinary course of business;
(m) sale, lease, sublease, license lease or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in such material assets or material properties, except for Company Intellectual Property licensed in the ordinary course of business;
(n) material loan by the Company or any of its Subsidiaries to any Personperson or entity, 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, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) 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;
(po) waiver or release of any material right or claim of the Company or any of its SubsidiariesCompany, including any waiver, release write-off or other compromise of any account receivable of the Company or any of its SubsidiariesCompany;
(qp) 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, or Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries or relating to their respective businesses, properties or assetsaffairs, or any reasonable basis for any of the foregoing;
(rq) written 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, interest or right ownership by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property (as defined in Section 3.12 below) 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 person's Intellectual PropertyProperty (as defined in Section 3.12 below);
(sr) issuance, grant, delivery, sale issuance or purchasesale, or proposal, contract to issue or agreement to issue, grant, deliver, sell or purchasesell, by the Company or any of its Subsidiaries, of 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 any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, 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 ;
(s) other than in the ordinary course of business and business, consistent with past practice;
(t) practice (i) sale, lease, sale or license or transfer of any Company Intellectual Property or execution, modification or amendment entering into of any agreement with respect to the Company Intellectual Property with any Person person or entity or with respect to the Intellectual Property of any Person except in the ordinary course of business consistent with past practiceperson or entity, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment entering into of any agreement with respect to the Intellectual Property of any Person, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of businessperson or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, other than non-exclusive, end-user licenses for the Company’s products entered into in the ordinary course of business, or (iv) change in pricing or royalties set or charged by the Company or any of to its Subsidiaries to their respective customers or licensees or in pricing or royalties set or charged by Persons persons who have licensed Intellectual Property to the Company except in the ordinary course of business consistent with past practiceCompany;
(ut) agreement or modification to any Material Contract agreement pursuant to which any other party is or was granted marketing, distribution, development, manufacturing development or similar rights of any type or scope with respect to any products or technology of the Company Company;
(u) hiring or any termination of its Subsidiariesemployees of the Company;
(v) to the knowledge of the Stockholders, event or condition of any character type that has had or is reasonably likely to have a Company Material Adverse 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 Effect on 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 business 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 employeesCompany; or
(ccw) 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 (bbv) 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
Sources: Merger Agreement (Lantronix)