No Changes. Since the Balance Sheet Date, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, any: (a) transaction by the Company or its Subsidiary 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 the Subsidiary; (c) capital expenditure or capital commitment exceeding $10,000 individually or $50,000 in the aggregate; (d) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiary), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 its Subsidiary (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 its Subsidiary; (g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiary; (h) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; (i) revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable; (j) declaration, setting aside or payment of any distribution (whether in cash or property) in respect of any Company Units, any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for Company Units, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any Company Units (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company; (k) (i) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their officers, employees, consultants or advisors, (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement; (l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement; (m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, or any creation of any security interest in such assets or properties; (n) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement; (o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 right or claim of the Company or its Subsidiary, including any write-off or other compromise of any account receivable of the Company or its Subsidiary; (q) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing; (r) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content; (s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing; (t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market; (v) 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 its Subsidiary; (w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary; (x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary; (y) any action to accelerate the vesting schedule of any Company Unvested Units; (z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees; (aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or (bb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aa) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
No Changes. Since Between the date of the Current Balance Sheet Dateand the date of this Agreement, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) material transaction by the Company or its Subsidiary 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 articles of incorporation or the organizational documents bylaws of the SubsidiaryCompany or any of its Subsidiaries, except as expressly contemplated by this Agreement;
(c) capital expenditure or capital commitment by the Company or its Subsidiaries exceeding $10,000 50,000 individually or $50,000 100,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 100,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, whether fixed or accrued, asserted absolute or unassertedcontingent, contingent matured or otherwise of the Company unmatured, determined or its Subsidiarydeterminable or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities recorded reflected on or reserved against in the Current Balance Sheet and current liabilities incurred since 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 its Subsidiary (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 its Subsidiary;
(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, or depreciation or amortization policies or rates) by the Company or its SubsidiarySubsidiaries other than as required by GAAP;
(hf) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ig) revaluation by the Company or its Subsidiary Subsidiaries of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(jh) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyOptions;
(k) (i) material increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary Subsidiaries to any of their officers, employees, consultants directors or advisors, (ii) Employees or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 Person (except pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementpre-existing bonus plans and amounts earned thereunder as previously disclosed to Parent);
(lj) agreementany termination or extension, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any terminationamendment, extension, amendment waiver or modification of the terms terms, of any agreementContract required to be disclosed in Section 3.14 of the Company Disclosure Schedule (other than terminations in connection with the scheduled end of the term of such Contract);
(k) except in the ordinary course of business consistent with past practices, contract, covenant, instrumentsale, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, leasesublease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company or its SubsidiarySubsidiaries, including the sale of any accounts receivable of the Company or its SubsidiarySubsidiaries, or any creation of any security interest Lien (other than Permitted Liens) in such assets or properties;
(nl) loan by the Company or its Subsidiary Subsidiaries to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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), incurring by the Company or its Subsidiaries of any indebtedness for money borrowed, guaranteeing by the Company or its Subsidiaries of any indebtedness for money borrowed, issuance or sale of any debt securities of the Company or its Subsidiaries or guaranteeing of any debt securities of others, except for trade payables and advances to employees for travel and business expenses, in each case in the ordinary course of business consistent with past practices;
(pm) waiver or release of any material right or claim of the Company or its Subsidiaryclaim, including any write-off off, discount or other compromise of any account receivable of the Company or its SubsidiarySubsidiaries, other than write-offs of accounts receivable in the ordinary course of business consistent with past practices;
(qn) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingSubsidiaries;
(ro) notice of any claim or potential claim of ownership, interest or right ownership by any Person other than the Company or its Subsidiary Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, Subsidiaries or of infringement by the Company or its Subsidiary Subsidiaries of any other Person’s Intellectual Property or rights to music or other content;
Rights; (sp) issuance, grant, delivery, (i) sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, license of any Company Units Intellectual Property or securities convertible intoexecution of any agreement with respect to the Company Intellectual Property with any Person, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music Intellectual Property Rights or other content or execution, modification or amendment execution of any agreement with respect to the music or other content Intellectual Property Rights of any PersonPerson (other than the Company), other than ordinary course shrink wrap software agreements for internal operations, (iii) agreement or modification or amendment with respect to the development of an existing agreement any Intellectual Property Rights with any Channel Outleta third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons persons who have conveyed Content licensed Intellectual Property Rights to the Company or its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution marketCompany;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aa) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
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 5.1 hereof, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or any of its Subsidiary 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 the any Subsidiary;
(c) capital expenditure or capital commitment exceeding $10,000 individually or $50,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction, in any amount in excess of $5,000 50,000 in any one case, or $10,000 100,000 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 SubsidiarySubsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 Subsidiary 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 SubsidiarySubsidiaries;
(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 SubsidiarySubsidiaries other than as required by GAAP;
(hg) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ih) revaluation by the Company or any of its Subsidiary Subsidiaries of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(ji) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital 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 UnitsCapital 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 Units Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Options or Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyShares;
(k) (ij) increase in or other change to the salary or other compensation payable or to become payable by the Company or any of its Subsidiary Subsidiaries to any of their respective officers, directors or employees, consultants or advisors, (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiary Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(mk) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company or any of its SubsidiarySubsidiaries, including the sale of any accounts receivable of the Company or any of its SubsidiarySubsidiaries, 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) loan by the Company or any of its Subsidiary Subsidiaries to any Person, or purchase by the Company or any of its Subsidiary Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(om) incurring by the Company or any of its Subsidiary Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiary Subsidiaries of any additional indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiary 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 right or claim of the Company or any of its SubsidiarySubsidiaries, including any write-off or other compromise of any account receivable of the Company or any of its SubsidiarySubsidiaries;
(qo) commencement or settlement of any lawsuit by the Company or any of its SubsidiarySubsidiaries, the commencement, settlement, notice or, to the Knowledge of the Company or the Principal Stockholders, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiary Subsidiaries or relating to any of its their businesses, properties or assets, or any reasonable basis for any of the foregoing;
(rp) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or any of its Subsidiary Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiary or of the Content, Subsidiaries or of infringement by the Company or any of its Subsidiary Subsidiaries of any other Personperson’s Intellectual Property or rights to music or other contentProperty;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (uq) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(wr) acquisition by the Company or its any Subsidiary or agreement by the Company or its any 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 its SubsidiarySubsidiaries;
(xs) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement grant by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule Subsidiary of any Company Unvested Units;
(z) hiring, promotion, demotion severance or termination pay (in cash or other change otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its SubsidiaryDisclosure Schedule; or
(bbt) agreement by the Company or any of its SubsidiarySubsidiaries, or any officer or employees on behalf of the Company or any of its SubsidiarySubsidiaries, to do any of the things described in the preceding clauses (a) through (aas) of this Section 2.10 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
No Changes. Since Except as set forth in Part 2.8 of the Balance Sheet DateSkipping Stone Disclosure Schedule, since December 31, 2003, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company Skipping Stone or any of its Subsidiary 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 certificate of incorporation or bylaws of Skipping Stone or the organizational comparable governing documents of the Subsidiaryany of its subsidiaries;
(c) capital expenditure or capital commitment exceeding by Skipping Stone or any of its subsidiaries in excess of $10,000 individually 50,000 in any individual case or $50,000 100,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 50,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaryotherwise), other than payments(i) the payment, discharges discharge or satisfactions satisfaction of liabilities made in the ordinary course of business of liabilities recorded consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices, (ii) reflected or reserved against in the Current Unaudited Balance SheetSheet or (iii) pursuant to Section 5.5 or 5.11;
(e) destruction ofmaterial loss, damage or destruction to, or loss of any material assets (whether tangible interruption in the use of, any of Skipping Stone's or intangible), any of its subsidiaries' respective material business or material customer of the Company or its Subsidiary (whether or not covered by insurance)assets;
(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 Skipping Stone or any of its Subsidiarysubsidiaries;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) utilized by the Company Skipping Stone or any of its Subsidiarysubsidiaries;
(h) adoption revaluation by Skipping Stone of any of its or change in any material election of its subsidiaries' respective assets (whether tangible or intangible);
(i) declaration, setting aside or payment of a dividend or other distribution with respect to Skipping Stone Common Stock, or any direct or indirect redemption, purchase or other acquisition by Skipping Stone of any of its capital stock or any split, combination or reclassification in respect of Taxesany shares of Skipping Stone Common Stock, adoption or change any issuance or authorization of any issuance of any other securities in lieu of or in substitution for shares of Skipping Stone Common Stock, other than pursuant to Section 5.11 or Section 5.19;
(j) other than periodic increases in compensation in the ordinary course and consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices, increase above historic levels in the salary or other compensation or benefits (including, but not limited to, options or other equity-based compensation awards) payable or to become payable by Skipping Stone or any accounting method of its subsidiaries to any of their respective officers, directors, employees or consultants, or, except as contemplated in respect Section 5.11, the declaration, payment or commitment or obligation of Taxesany kind for the payment of a bonus or other additional salary or compensation or benefits (including, but not limited to, options or other equity-based compensation awards) to any such person.
(k) sale, lease, license or other disposition of any of the material assets or properties of Skipping Stone or any of its subsidiaries, or the creation of any security interest in such assets or properties, other than agreements with customers and suppliers entered into in the ordinary course of business and consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices;
(l) amendment or termination of any material contract, agreement or license to which Skipping Stone or any of its subsidiaries is a party or by which it is bound other than in accordance with the terms thereof;
(m) loan by Skipping Stone or any of its subsidiaries to any person or entity, incurring by Skipping Stone or any of its subsidiaries of any indebtedness, guaranteeing by Skipping Stone or any of its subsidiaries of any indebtedness, issuance or sale of any debt securities of Skipping Stone 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 Skipping Stone's or its subsidiary's, as the case may be, past practices;
(n) waiver or release of any right or claim of Skipping Stone or any of its subsidiaries, including any write-off or other compromise of any account receivable of Skipping Stone or any of its subsidiaries, other than in the ordinary course of business consistent with Skipping Stone's or its subsidiary's, as the case may be, past practice;
(o) commencement, settlement or notice or threat of commencement of any lawsuit or proceeding against, or investigation of, Skipping Stone or any of its subsidiaries or their respective affairs or any reasonable basis for any of the foregoing;
(p) notice of any claim of ownership by a third party of Skipping Stone Intellectual Property (as defined in Section 2.11) or of infringement by Skipping Stone or any of its subsidiaries of any Skipping Stone Third-Party Intellectual Property (as defined in Section 2.11);
(q) issuance or sale, or contract to issue or sell, by Skipping Stone of any shares of Skipping Stone Common Stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities, other than pursuant to the exercise of any options to purchase Skipping Stone Common Stock outstanding on the date hereof and granted under Skipping Stone Option Plan;
(r) material change in pricing or royalties set or charged by Skipping Stone or any of its subsidiaries to its customers or licensees or material change in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.11) to Skipping Stone or any of its subsidiaries;
(s) commitment to any person to (i) develop software without charge or (ii) incorporate any software into any of Skipping Stone's products;
(t) exclusive license, distribution, marketing or sales agreement entered into or any agreement to enter into any exclusive license, distribution, marketing or sales agreement, other than in the ordinary course of business consistent with past practice;
(u) event or condition of any character that has or could reasonably be expected to have a Material Adverse Effect;
(v) new or changed material tax election or tax accounting method, closing agreement, settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;; or
(iw) revaluation agreement by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any distribution (whether in cash or property) in respect of any Company Units, any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for Company Units, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any Company Units (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their officers, employees, consultants or advisors, (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it Skipping Stone or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it subsidiaries or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, or any creation of any security interest in such assets or properties;
(n) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 right or claim of the Company or its Subsidiary, including any write-off or other compromise of any account receivable of the Company or its Subsidiary;
(q) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its Subsidiary, or any officer respective officers or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aav) of this Section 2.10 (other than negotiations with Purchaser Parent and the Members its affiliates and their representatives regarding the transactions contemplated by this Agreement and any Related AgreementsAgreement).
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 hereof, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) material transaction by the Company or any of its Subsidiary 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 the any Subsidiary;
(c) capital expenditure expenditure, transaction or capital commitment exceeding $10,000 25,000 individually or $50,000 any commitment or transaction of the type described in Section 2.13 hereof in any case by the aggregateCompany or any of its Subsidiaries;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 250,000 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 SubsidiarySubsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 its Subsidiary (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 SubsidiarySubsidiaries;
(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 SubsidiarySubsidiaries other than as required by GAAP;
(h) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or any of its Subsidiary Subsidiaries of any of their its assets (whether tangible or intangible), including except for the writing off or down of the value of intangible assets inventory or writing off of notes or accounts receivable, fixed assets and investments in Subsidiaries;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital 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 UnitsCapital 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 Units Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Options or Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger Shares or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyRelated Agreements;
(k) (i) 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 Subsidiary Subsidiaries to any of their respective officers, directors, employees, consultants or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiary Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(l) agreement, contract, covenant, instrument, lease, license or commitment Material Contract to which the Company or any of its Subsidiary Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment Material Contract to which the Company or any of its Subsidiary Subsidiaries is a party or by which it or any of their assets is are bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its SubsidiarySubsidiaries, including the sale of any accounts receivable of the Company or any of its SubsidiarySubsidiaries, 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) loan by the Company or any of its Subsidiary 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 Subsidiary Subsidiaries 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 Subsidiary Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiary Subsidiaries of any additional indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiary 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 SubsidiarySubsidiaries, including any write-off waiver, release or other compromise of any account receivable of the Company or its SubsidiaryVoD Business;
(q) (i) commencement or settlement of any lawsuit by the Company or any of its SubsidiarySubsidiaries, the or (ii) commencement, settlement, notice or, to the Knowledge of the Company or any of its Subsidiaries, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiary Subsidiaries or relating to any of its their 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) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or any of its Subsidiary Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiary or of the Content, Subsidiaries or of infringement by the Company or any of its Subsidiary Subsidiaries of any other Person’s Intellectual Property or rights to music or other content;
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 SubsidiarySubsidiaries, of any shares of Company Units Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital 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;
(t) other than in the ordinary course of business, except for (i) sale, lease, license issuances of Company Capital Stock upon the exercise of Company Options or transfer the conversion of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, Company Preferred Stock or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect prior to the music date hereof, the grant of restricted Company Common Stock or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the options to purchase Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content Common Stock to the Company or its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 employees of the Company or its Subsidiaryunder the Plan;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aa) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Harmonic Inc)
No Changes. Since the Balance Sheet DateSeptember 30, 2000, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, ---------- arisen any:
(a) transaction by the Company or its Subsidiary 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 the organizational documents Bylaws of the SubsidiaryCompany;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 100,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaryotherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities recorded 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 loss of any material customer of the Company or its Subsidiary (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 its Subsidiaryaction;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaryother than as required by GAAP;
(h) adoption of or change in any material election in respect of TaxesTaxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivableits assets;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCommon Stock, or any split, combination or reclassification in respect of any shares of Company Common Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCommon Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Common Stock (or options, warrants options or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, Options and (ii) a cash distribution in an amount equal distributions to up Shareholders for income tax purposes pursuant to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company5.1(f);
(k) (i) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their its officers, employeesdirectors, consultants employees or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(l) any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangibleincluding intangible assets) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their its assets is are bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license lease or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, or any creation of any security interest in such material assets or material properties;
(n) loan by the Company or its Subsidiary to any Personperson or entity, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 right or claim of the Company or its SubsidiaryCompany, including any write-off or other compromise of any account receivable of the Company or its SubsidiaryCompany;
(qp) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or, to the Knowledge of the Company, or Principal Shareholder, threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assetsaffairs, or any reasonable basis for any of the foregoing;
(rq) notice to the Company, or to the knowledge of the Company any Shareholder, director or officer of the Company, of any claim or potential claim of ownership, interest or right ownership by any Person person other than the Company or its Subsidiary of the Company Intellectual Property (as defined in Section 3.12 below) owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s person's Intellectual Property or rights to music or other content(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 its Subsidiary, of any shares of Company Units Common Stock, any other form of capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCommon Stock, any other form of capital stock, or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, sale or license or transfer of any Content Company Intellectual Property or execution, modification or amendment entering into of any agreement with respect to Content the Company Intellectual Property with any Personperson or entity or with respect to the Intellectual Property of any person or entity, or (ii) purchase or license of any music Intellectual Property or other content or execution, modification or amendment entering into of any agreement with respect to the music or other content Intellectual Property of any Personperson or entity, (iii) agreement or modification or amendment with respect to the development of an existing agreement any Intellectual Property with any Channel Outleta third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons persons who have conveyed Content licensed Intellectual Property to the Company Company;
(t) agreement or its Subsidiary; modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in Effect on the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its SubsidiaryCompany; or
(bbw) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aav) of this Section 2.10 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any Related AgreementsAgreement).
Appears in 1 contract
Sources: Merger Agreement (Krooss John)
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, each of the Company and its Subsidiaries has operated the Business only in the ordinary course and there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary 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 the organizational documents of the Subsidiary;Subsidiary Charter Documents; EXECUTION VERSION
(c) capital expenditure amendment of any term of any outstanding security of the Company or capital commitment exceeding $10,000 individually or $50,000 in the aggregateits Subsidiaries;
(d) other than expenditure, transaction or commitment by the payment of Third Party Expenses, Company or its Subsidiaries exceeding $75,000 individually or $75,000 in the aggregate with respect to any single Person;
(e) payment, discharge, waiver or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its SubsidiarySubsidiaries), other than payments, discharges discharges, waivers or satisfactions in the ordinary course of business of liabilities recorded 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 its Subsidiary 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 its SubsidiarySubsidiaries;
(gh) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its SubsidiarySubsidiaries other than as required by GAAP;
(hi) adoption of or change in any material election in respect of TaxesTaxes (as defined in Section 2.13(a) hereof), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ij) revaluation by the Company or its Subsidiary Subsidiaries of any of their material assets (whether tangible or intangible), including without limitation, writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(jk) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company or its Subsidiaries of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (il) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary Subsidiaries to any of their its officers, employeesdirectors, consultants employees or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;person; EXECUTION VERSION
(lm) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary Subsidiaries is a party or by which it they or any of its their assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary Subsidiaries is a party or by which it they or any of their assets is are bound, other than pursuant to in the Company’s Standard Form ordinary course of Agency Agreementbusiness;
(mn) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its SubsidiarySubsidiaries, including including, but not limited to, the sale of any accounts receivable of the Company or its SubsidiarySubsidiaries, 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) loan by the Company or its Subsidiary Subsidiaries to any Person, or purchase by the Company or its Subsidiary Subsidiaries of any debt securities of any Person Person, or amendment capital contributions to the terms of investment in any outstanding loan agreementPerson;
(op) creation or other incurrence by the Company or its Subsidiaries of any Lien on any of its asset, except for Liens for Taxes not yet due and payable;
(q) incurring by the Company or its Subsidiary Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary Subsidiaries of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 right or claim of the Company or its SubsidiarySubsidiaries, including any write-off or other compromise of any account receivable of the Company or its SubsidiarySubsidiaries, other than in the ordinary course of business;
(qs) commencement or settlement of any lawsuit by the Company or its SubsidiaryCompany, the commencement, settlement, notice or written threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary Subsidiaries or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingtheir affairs;
(rt) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company in or its Subsidiary of to the Company Intellectual Property (as defined below) owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s 's Intellectual Property or rights to music or other content(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 its Subsidiary, of any shares of Company Units Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital Stock, or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, sale or license or transfer of any Content Intellectual Property owned by the Company or execution, modification or amendment execution of any agreement with respect to Content Intellectual Property owned or exclusively licensed by the Company with any Person, or (ii) purchase or license of any music Intellectual Property or other content or execution, modification or amendment execution of any agreement with respect to the music or other content Intellectual Property of any Person, (iii) agreement or modification or amendment with respect to the development of an existing agreement any Intellectual Property with any Channel Outleta third party, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aa) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements).EXECUTION VERSION
Appears in 1 contract
No Changes. Since Except as set forth on Section 5.18 of the Company Disclosure Schedule or as expressly contemplated by this Agreement, since the Balance Sheet Date, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction capital expenditure or commitment or other payment obligation by the Company or its Subsidiary 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 the Subsidiary;
(c) capital expenditure or capital commitment exceeding $10,000 50,000 individually or $50,000 200,000 in the aggregate;
(db) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in satisfaction by the aggregate, Company of any claim, liability, right claim or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiary)Liability, other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded Liabilities reflected or reserved against in the Current Balance SheetSheet as required under the Contract relating to such Liability or trade payables incurred in the ordinary course of business;
(ec) borrowed or agreed to borrow any amount of, incurred or become subject to any Indebtedness, or mortgaged, pledged or subject to any Lien any properties or assets of the Company;
(d) destruction of, damage to, or loss of any material assets of the Company (whether tangible or intangible), ) having a replacement value in excess of $25,000 or any material business or material customer Customer of the Company or its Subsidiary (in each case, whether or not covered by insurance);
(fe) employment dispute, including claims or matters raised adoption 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 its Subsidiary;
(g) adoption of any new accounting method or change by the Company in accounting methods or practices (including any change in depreciation or amortization policies or rates) of the Company;
(f) adoption by the Company or its Subsidiary;
(h) adoption of or any new Tax election inconsistent with the Company’s prior course of practice, change by the Company in any material election in Tax election, amended Tax Returns filed by the Company, new Contract entered into involving the Company with respect of to Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement an assertion of any written or to the Knowledge of the Company other Tax claim or assessment in respect against the Company, settlement or compromise by the Company of Taxesany Tax claim or assessment, or surrender of any right to claim a refund of Taxes by the Company, extension or waiver by the Company of the limitation period applicable to any Tax claim or assessment or the filing by the Company of any Tax Return, change in respect Tax residence of Taxesthe Company or any other action taken outside the ordinary course of business that would have the effect of increasing the Tax liability of the Company for any Tax period (or portion thereof) beginning after the Closing Date;
(i) revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(jg) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsSecurities, or any split, combination or reclassification in respect of any Company Securities, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for Company UnitsSecurities (other than Company Securities issued upon the exercise or conversion of the Convertible Securities), or any direct or indirect repurchase, redemption, or other acquisition by the Company of of, or any issuance of, any Company Units Securities (or options, warrants or other rights convertible into, exercisable or exchangeable therefor)for Company) or any equity appreciation, except phantom equity or similar rights;
(ih) in accordance with the agreements evidencing Company Unvested Unitsresignation or removal of any officer, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) director or manager of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase in adoption, amendment or other termination of any Benefit Plan, or adopting any new employee benefit plan, arrangement or agreement (including any such plan, arrangement or agreement providing for retention, change to the of control, severance or similar payments or potential payments);
(j) made or granted any bonus or any wage, salary or other compensation payable or to become payable by the Company or its Subsidiary increase to any of their officers, employees, consultants or advisors, Employee;
(iik) the declaration, payment or commitment or obligation of implemented any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus location closing or other additional salary or compensation to any such Personlayoff of employees that could implicate the Worker Adjustment Retraining and Notification Act, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum29 U.S.C. § 2101 et seq., or any similar state or local Laws (iii) adoption or amendment of any Company Employee Plancollectively, or execution or amendment of any Employee Agreementthe “WARN Act”);
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company or its Subsidiaryoutside of the ordinary course of business of the Company, including the sale of any accounts receivable of the Company or its SubsidiaryAccounts Receivable, or any creation of any security interest in such assets or properties;
(nm) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person Person, or amendment to guarantee any of the terms foregoing of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary or guaranteeing of any debt securities of othersPerson, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practicesof the Company;
(pn) waiver or release of any material right or claim of the Company or its SubsidiaryCompany, including any write-off or other compromise of any account receivable Accounts Receivable, or change in practices or procedures with respect to the collection of Accounts Receivable or extension of any other incentive with respect thereto;
(o) written or, to the Knowledge of the Company, other notice or threat of any adverse change in the relationship between the Company and its customers, suppliers or its Subsidiaryother vendors;
(p) commencement or settlement by the Company of any lawsuit, or the commencement of any lawsuit, investigation or similar proceeding against the Company;
(q) commencement increase in any wage, salary, bonus or settlement other compensation of any lawsuit by the Company officer, employee, director, representative or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any consultant of the foregoingCompany;
(r) employment dispute, including claims or matters raised by any individual, Governmental Authority, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action or violation of Law, in each case with respect to the Company;
(s) written notice of any claim or potential claim of ownership(i) ownership of, interest in or right by to any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by any Person (other than the Company) or developed (ii) infringement, misuse, or created misappropriation by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoingRights;
(t) other than in the ordinary course of business, (i) sale, lease, license license, assignment, or transfer by the Company to any Person of any Content Company Intellectual Property or execution, modification modification, termination, or amendment of any agreement Material Contract to which the Company is a party with respect to Content the Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, or in each case, excluding standard end user licenses and Contracts and similar Contracts entered into in the ordinary course of business of the Company, (ii) purchase purchase, assignment, or license of any music or other content Intellectual Property or execution, modification modification, termination, or amendment of any agreement Material Contract to which the Company is a party with respect to the music or other content Intellectual Property of any Person, (iii) agreement new Contract or modification termination, modification, or amendment of an existing agreement Contract to which the Company is a party, with respect to the development of any Channel Outlet, Technology or Intellectual Property Rights with a third party or (iv) change in pricing set lapse, expiration, abandonment or charged by the any other disposition of any Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; Intellectual Property;
(u) event entering into a Contract or condition of material modification to any character that has had a Contract pursuant to which any other party was granted design, development, use, import, branding, advertising, promotion, marketing, distribution, testing, packaging, labelling, manufacturing or selling rights with respect to any Company Material Adverse Effectproduct (including the AMDS), other than an event generally affecting Purchaser and other participants except in the digital distribution marketordinary course of business of the Company;
(v) 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 its SubsidiaryCompany;
(w) acquisition change the pricing or royalties set or charged by the Company to its customers or its Subsidiary licensees or agreement in pricing or royalties set or charged by Persons who have licensed Technology or Intellectual Property Rights to the Company, or make any other material change to the terms and conditions (including payment, discount, allowance, warranty or indemnification terms) upon which the Company or its Subsidiary makes the Company products (including the AMDS) available to acquire by merging or consolidating withthird parties, 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 its Subsidiaryotherwise;
(x) execution other transaction outside the ordinary course of any strategic alliance, affiliate or joint marketing arrangement or agreement by business of the Company or its SubsidiaryCompany;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiringpromise, promotion, demotion commitment or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement Contract by the Company or its SubsidiaryCompany, or any officer or employees Employee on behalf of the Company or its SubsidiaryCompany, to do any of the things described in the preceding clauses (a) through (aax) of this Section 2.10 5.18 (other than negotiations with Purchaser Buyer and the Members and their representatives its Representatives regarding the transactions contemplated by in this Agreement and any the Related Agreements); or
(z) event, occurrence of development that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 1 contract
No Changes. Since December 31, 2010, except as set forth in Section 2.9 of the Balance Sheet DateSchedule of Exceptions, there has or have not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary Company, which is material to 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 Company Charter Documents or the organizational documents of the SubsidiaryDocuments;
(c) capital expenditure or capital commitment by the Company exceeding $10,000 individually or $50,000 25,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 10,000 in any one case, or $10,000 25,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or asserted, unasserted, contingent or otherwise of the Company or its Subsidiaryotherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction of claims, liabilities and obligations in the ordinary course of business or of liabilities recorded reflected or reserved against in the Current Balance SheetFinancial Statements;
(e) destruction ofpending or, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer to the Knowledge of the Company Company, threatened action, suit or its Subsidiary (whether other legal proceeding by or not covered by insurance);
(f) employment dispute, including claims or matters raised by before any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding Entity with respect to a labor trouble dispute or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or its SubsidiaryCompany;
(gf) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaryother than as required by GAAP;
(hg) adoption of or change in any material election in respect of Taxes, adoption or change in any material accounting method in respect of Taxes, material agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ih) revaluation by the Company or its Subsidiary of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(ji) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, redemption or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(j) destruction of, except damage to, or loss of any assets (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%whether tangible or intangible) of the estimated net taxable income (within Company with a book value in excess of $10,000 in any one case or $25,000 in the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1aggregate, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall whether or not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution covered by the Companyinsurance;
(k) (iexcept in the ordinary course of business consistent with past practice or pursuant to the written plans and policies of the Company in effect as of December 31, 2010 and listed on Section 2.23(a)(i) of the Schedule of Exceptions, a material increase in or other change to the base salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their officersCompany Personnel, employees, consultants or advisors, (ii) the declaration, payment or payment, commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;
(l) agreement, contract, covenant, instrument, lease, license or commitment entry into any material Contract to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, extension or material amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment material Contract to which the Company or its Subsidiary is a party or by which it or any of their its assets is are bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or its Subsidiarytaken as a whole, including the sale of any accounts receivable of the Company or its SubsidiaryCompany, or any creation of any security interest in any such material assets or material properties;
(n) (i) loan made by the Company or its Subsidiary to any PersonPerson that is outstanding as of the date hereof (other than accounts receivables, or purchase deposits and prepaid expenses in the ordinary course of business, including advances to Company Personnel for travel and business expenses in the ordinary course of business), (ii) incurrence by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing (iii) guarantee by the Company or its Subsidiary of any additional indebtedness, (iv) issuance or sale of any debt securities of the Company or its Subsidiary or guaranteeing (v) guarantee 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) granting of any waiver or release by the Company of any right or claim of material to the Company or its SubsidiaryCompany, including any write-off or other compromise of any material account receivable of the Company Company;
(p) commencement, settlement, written notice or, to the Knowledge of the Company, threat, of any lawsuit or its Subsidiarylegal proceeding or other investigation by a Governmental Entity against the Company;
(q) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of 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 ownership by any Person other than the Company or its Subsidiary of the any Company Intellectual Property owned by or owned, developed or created by the Company or its Subsidiary Company, or of the Content, any claim or potential claim of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other contentProperty;
(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 its Subsidiary, of any shares of Company Units Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital Stock or any stock, or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(ts) (i) sale or license by the Company of any Company Intellectual Property or execution of any agreement with respect to any Company Intellectual Property (other than customer contracts in the ordinary course of business), (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license by the Company of any music Intellectual Property or other content or execution, modification or amendment execution of any agreement with respect to the music or other content Intellectual Property of any other Person, except as contemplated by this Agreement, (iii) agreement or modification or amendment by the Company with respect to the development of an existing agreement any Intellectual Property with any Channel Outleta third party (other than customer contracts in the ordinary course of business), or (iv) material change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons who have conveyed Content licensed Intellectual Property to the Company Company, except in the case of clause (i) or its Subsidiary; (ii), with respect to non-exclusive end user licenses of object code in the ordinary course of business;
(t) agreement or material modification to any agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) any other event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;; or
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its SubsidiaryCompany, or any officer officer, employee or employees director on behalf of the Company or its SubsidiaryCompany, to do any of the things described in the preceding clauses (a) through (aau) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements)2.9.
Appears in 1 contract
No Changes. Since December 31, 2013, the Balance Sheet Date, Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice and there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary 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 the any Subsidiary;
(cb) capital expenditure expenditure, transaction or capital commitment exceeding $10,000 75,000 individually or $50,000 150,000 in the aggregate;
(dc) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction, satisfaction in any amount in excess of $5,000 in any one case, 75,000 or $10,000 150,000 in the aggregate, aggregate of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiary)Liability, other than payments, discharges or satisfactions in the ordinary course of business consistent with past practice of liabilities recorded Liabilities reflected or reserved against in the Current Balance SheetSheet or with respect to Liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date;
(ed) destruction of, damage to, or loss of any material tangible assets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiary Subsidiaries (whether or not covered by insurance), or the loss of any material business or material customer;
(fe) employment disputeclaims, including claims charges, grievances or matters raised by any individual, Governmental Entity, works council, employee or any workers’ representative organizationrepresentatives, group of employees, bargaining unit unit, union or union regarding other labor trouble organization regarding, claiming or claim of alleging an unfair labor practice, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiarySubsidiaries;
(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 SubsidiarySubsidiaries;
(hg) adoption of or change in any material Tax election in respect of Taxesor accounting method, adoption entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or change in any accounting method in respect of Taxesclosing agreement, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ih) revaluation by the Company or any of its Subsidiary Subsidiaries of any of their respective assets (whether tangible or intangible), including writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(ji) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except ;
(i) other than in accordance the ordinary course of business consistent with the agreements evidencing Company Unvested Unitspast practice, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1increase in, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase decrease in or other change to the salary salary, wage rates, bonuses or fringe benefits or other compensation (including equity based compensation) payable or to become payable by the Company or its Subsidiary to any of their officers, employees, consultants or advisors, Employee; (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equityequity or otherwise) by the Company or any of its Subsidiary 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 Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, its Employees; or (iii) adoption promise to pay any special bonus or amendment of special remuneration (whether payable in cash, equity or otherwise) to any Company Employee Plan, or execution or amendment of any Employee AgreementEmployee;
(lk) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment Material Contract to which the Company or any of its Subsidiary Subsidiaries is a party or by which it or any of their respective assets is are bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(ml) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its SubsidiarySubsidiaries other than in the ordinary course of business consistent with past practice, including the sale of any accounts receivable of the Company or any of its Subsidiary, Subsidiaries or any creation of any security interest in such assets or properties;
(nm) loan by the Company or any of its Subsidiary Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practice), forgiveness by the Company or any of its Subsidiaries of any loan to any Person, or purchase by the Company or any of its Subsidiary Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreementagreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(on) incurring except for the Promissory Note, incurrence by the Company or its Subsidiary of any indebtednessIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiary Subsidiaries of any additional indebtednessIndebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiary 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;
(po) waiver or release of any material right or claim of the Company or any of its SubsidiarySubsidiaries, including any write-off waiver, release or other compromise of any account receivable of the Company by the Company or any of its SubsidiarySubsidiaries;
(qp) commencement or settlement of any lawsuit by the Company or any of its SubsidiarySubsidiaries, the or commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiary Subsidiaries or relating to any of its their respective businesses, properties or assets, or any reasonable basis for any of the foregoing;
(rq) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or one of its Subsidiary Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or any of its Subsidiary Subsidiaries of any other Person’s Intellectual Property owned, developed or rights to music or other contentcreated by an third Person;
(sr) issuance, grant, delivery, sale or purchase, or proposal, contract proposal or agreement Contract to issue, grant, deliver, sell or purchase, by the Company or any of its SubsidiarySubsidiaries, of (i) any shares of Company Units Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Units, Capital Stock; or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(ts) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content Company Intellectual Property (or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or the execution, modification or amendment of any agreement with respect to the music sale, lease, license or other content transfer of any PersonCompany Intellectual Property) other than non-exclusive end user licenses granted in the ordinary course of business consistent with past practice; (ii) purchase or license of any Intellectual Property by the Company or any of its Subsidiaries, (iii) agreement or execution, modification or amendment of an existing any agreement with any Channel Outlet, or (iv) change in pricing set or charged by to which the Company or any of its Subsidiary Subsidiaries is a party with respect to any Intellectual Property owned by or developed or created by any third Person other than licenses for the license, purchase Shrink-Wrap Code; or use of the Content or (iii) material change in pricing or royalties set or charged by (A) the Company or any of its Subsidiaries to its customers or licensees; or (B) Persons who have conveyed Content licensed any Intellectual Property to the Company or any of its Subsidiary; Subsidiaries;
(t) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property;
(u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 SubsidiarySubsidiaries;
(w) acquisition by the Company or any of its Subsidiary Subsidiaries of, or agreement by the Company or any of its Subsidiary 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 and its SubsidiarySubsidiaries, taken as a whole;
(x) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other arrangement with any works council, union, employee or workers’ representatives, group of employees or other labor organization;
(y) increase in the rights to indemnification of any Employees;
(z) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or the authorization of any cash or equity exchange for any options granted under any of such plans;
(aa) execution, termination or amendment of any Employee Agreement (other than the execution of the Company’s standard at-will offer letter and proprietary information and invention assignment agreement, the forms of which have been made available to Parent);
(bb) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its SubsidiarySubsidiaries;
(ycc) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Unvested Units;
Options or any Company Common Stock or any similar equity awards; (zdd) hiringhiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of excluding independent contractors who ceased performing services for the Company or its Subsidiary; or
(bb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described its Subsidiaries in the preceding clauses (a) through (aa) ordinary course of this Section 2.10 (other than negotiations business consistent with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements).past practice;
Appears in 1 contract
Sources: Merger Agreement (Solarcity Corp)
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 hereof, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) material transaction by the Company or its Subsidiary 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 the Subsidiaryexcept as expressly contemplated by this Agreement;
(c) capital expenditure or capital commitment exceeding $10,000 individually or $50,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, satisfaction of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaryotherwise), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 its Subsidiary (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 its SubsidiaryCompany;
(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 its SubsidiaryCompany;
(hg) making of or change in any Tax election, adoption of or change in any material election Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(jh) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested UnitsOptions or restricted stock awards granted under the Plan;
(i) (i) termination or extension, and or material amendment, waiver or modification of the terms, of any Material Contract not required by the terms thereof or (ii) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, could constitute such a cash distribution in an amount equal to up to forty-five percent breach or default;
(45%j) sale, lease, sublease, license or other disposition of any of the estimated net taxable income material assets (within the meaning of Section 703 whether tangible or intangible) or material properties of the Code and Company, including, but not limited to, the sale of any comparable provision accounts receivable of California law) from operations the Company, or any creation of any Lien in such material assets or material properties other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements;
(k) loan by the Company to any Person, incurring by the Company of any Indebtedness for borrowed money, guaranteeing by the period beginning on January 1Company of any Indebtedness for borrowed money, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income issuance or sale of any debt securities of the Company shall not include or guaranteeing of any income arising on account debt securities of others, except for advances to Employees for travel and business expenses in the Merger ordinary course of business consistent with past practices;
(l) waiver or the other transactions contemplated hereunder; (B) income and expenses release of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval material right or claim of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(km) commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs;
(n) issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital Stock or shares of capital stock of any of its subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its subsidiaries, or (ii) any securities, warrants, options or rights to purchase any of the foregoing, except, in either case, in accordance with agreements evidencing Company Options;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s Intellectual Property Rights;
(p) (i) sale or exclusive license of any Company IP or Company Products or execution of any agreement with respect to the Company IP or Company Products with any Person (other than non‑exclusive licenses of the Company Products to end‑users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Standard Form Agreements), (ii) purchase or exclusive license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than Shrink‑Wrap Software), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party pursuant to which the Company does not own all right, title and interest in and to the Intellectual Property Rights or Technology developed, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any office of the Company or resignation or removal of any director of the Company;
(r) (i) increase in or decrease in or other change to the salary salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company or its Subsidiary to any of their officers, employees, consultants or advisorsEmployees, (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equityequity or otherwise) by the Company or its Subsidiary 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 PersonEmployees, other than the declaration and payment of up (iii) promise to an aggregate of $20,850 of bonuses pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandumany Employee, or (iiiiv) adoption adoption, termination or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;
Agreement (l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the execution of the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangiblestandard at‑will offer letter) or properties of the Company or its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, or any creation of any security interest in such assets or properties;
(n) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan collective bargaining agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 right or claim of the Company or its Subsidiary, including any write-off or other compromise of any account receivable of the Company or its Subsidiary;
(q) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement any action to issue, grant, deliver, sell or purchase, by extend the Company or its Subsidiary, post‑termination exercise period of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, Options or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
similar equity awards; (t) other than in the ordinary course of businesscircumstance, (i) salechange, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition effect of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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, Effect with respect to the business of the Company or its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its SubsidiaryCompany; or
(bb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aa) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
No Changes. Since Except as provided in Section 2.10 of the Disclosure Schedule, since the Balance Sheet DateDate through the date of this Agreement, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary 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 the organizational documents of the SubsidiaryCompany;
(c) material decrease in the Company’s annual contract value;
(d) capital expenditure or capital commitment therefor by the Company exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(de) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its SubsidiaryCompany), other than (i) payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 its Subsidiary (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 its SubsidiaryCompany;
(gh) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its SubsidiaryCompany;
(hi) adoption of or change in any material Tax (as defined in Section 2.11) election in or any Tax accounting method, entering into any closing agreement with respect of to Taxes, adoption settlement or change in any accounting method in respect of Taxes, agreement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(ij) material revaluation by the Company or its Subsidiary of any of their its assets (whether tangible or intangible), including without limitation, writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(jk) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCommon Stock, or any split, combination or reclassification in respect of any shares of Company Common Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCommon Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Common Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (il) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their its officers, directors, employees, consultants or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Personperson, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iiiwritten plans and policies in effect as of the Balance Sheet Date and listed in Section 2.22(b)(1) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementthe Disclosure Schedule;
(lm) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is entry into a party or by which it or any of its assets (whether tangible or intangible) are bound Material Contract or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency AgreementMaterial Contract;
(mn) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiaryoutside of the ordinary course of business, including consistent with past practices, including, but not limited to, the sale of any accounts receivable of the Company or its SubsidiaryCompany, or any creation of any security interest in such assets or properties;
(no) loan by the Company or its Subsidiary to any Personperson or entity, or purchase by the Company or its Subsidiary of any debt securities of any Person person or amendment entity, except for advances to employees for travel and business expenses in the terms ordinary course of business, consistent with past practices, in an amount not to exceed $10,000 in any outstanding loan agreementone case or $25,000 in the aggregate;
(op) incurring incurrence by the Company or its Subsidiary of any indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 its SubsidiaryCompany, including any write-off or other compromise of any account receivable of the Company or its SubsidiaryCompany;
(qr) commencement or settlement of any lawsuit by the Company or its SubsidiaryCompany, the commencement, settlement, notice or 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 its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingaffairs;
(rs) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or its a Company Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, (as defined in Section 2.14 hereof) or of infringement by the Company or its Subsidiary of any other Personperson’s Intellectual Property or rights to music or other contentRights (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 its Subsidiary, of any shares of Company Units Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Units, Common Stock 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 Common Stock upon the exercise of options issued under the Plans;
(tu) other than in the ordinary course of business, (i) sale, lease, sale or license or transfer of any Content Company Intellectual Property to, or execution, modification or amendment of any agreement with respect to Content with any PersonCompany Intellectual Property with, any person or entity, (ii) purchase or license of any music or other content third-party Intellectual Property Rights from, or execution, modification or amendment of any agreement with respect to the music any third-party Intellectual Property Rights with, any person or other content of any Personentity, (iii) agreement agreement, or modification or amendment of an existing agreement agreement, with respect to the development of any Channel OutletContent & Technology or Intellectual Property Rights, with a third party (other than custom research projects that involve less than $50,000), or (iv) material change in pricing or royalties set or charged by the Company or to its Subsidiary for the licenselicensees, purchase or use of the Content or in pricing or royalties set or charged by Persons persons who have conveyed licensed Content & Technology or Intellectual Property Rights to the Company;
(v) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company or its Subsidiary; Product;
(uw) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vx) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its SubsidiaryCompany; or
(bby) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aax) of this Section 2.10 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any the Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Gartner Inc)
No Changes. Since the date of the Current Balance Sheet DateSheet, and except as expressly permitted by Section 5.1 hereof, there has or have not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or any of its Subsidiary Subsidiaries, which is material to the Company and its Subsidiaries taken as a whole, except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Company Charter Documents or the organizational documents of the SubsidiarySubsidiary Charter Documents;
(c) capital expenditure or capital commitment by the Company or any of its Subsidiaries exceeding $10,000 individually or $50,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 10,000 in any one case, or $10,000 50,000 in the aggregate, of any claim, liability, right claim or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiary)Liability, other than paymentspayment, discharges discharge or satisfactions satisfaction of claims, Liabilities and obligations in the ordinary course of business or of liabilities recorded 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 Subsidiary (Subsidiaries with a book value in excess of $10,000 in any one case or $50,000 in the aggregate, 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 disputes or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiarySubsidiaries;
(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 SubsidiarySubsidiaries other than as required by GAAP;
(h) adoption change by the Company or any of or change its Subsidiaries in any material written election in respect of Taxes, adoption or change by the Company or any of its Subsidiaries in any accounting method in respect which would alter the historic treatment of Taxesan item on a Return, amendment to any Return, agreement or settlement by the Company or any of its Subsidiaries of any claim or assessment in respect of any Taxes, or extension or waiver by the Company or any of its Subsidiaries of the limitation period applicable to any claim or assessment in respect of any Taxes;
(i) revaluation by the Company or its Subsidiary of any of their its or its Subsidiaries’ assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock or any stock or securities of its Subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital Stock or any stock or securities in its Subsidiaries, 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 UnitsCapital Stock or any stock or securities in its Subsidiaries, or any direct or indirect repurchase, redemption, redemption or other acquisition by the Company of any shares of Company Units Capital Stock or any stock or securities in its Subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, Options and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyRestricted Stock;
(k) (i) a material increase in or other change to the base salary or other compensation payable or to become payable by the Company or any of its Subsidiary Subsidiaries to any of their officersCompany Personnel, employees, consultants or advisors, (ii) the declaration, payment or payment, commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiary Subsidiaries of a severance payment, termination payment, bonus or other additional salary or material compensation to any such Personperson, other than except payroll and fees to employees and consultants in the declaration ordinary course of business and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, in accordance with existing compensation or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementsimilar plans;
(l) agreement, contract, covenant, instrument, lease, license or commitment entering into of any Contract to which the Company or any of its Subsidiary Subsidiaries is a party or by which it they or any of its their assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment Contract to which the Company or any of its Subsidiary Subsidiaries is a party or by which it they or any of their assets is are bound, other than pursuant to except in the Company’s Standard Form ordinary course of Agency Agreementbusiness and consistent with past practices;
(m) sale, lease, license (except for non-exclusive licenses of the Company Products in the ordinary course of business) or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its SubsidiarySubsidiaries taken as a whole, including the sale of any accounts receivable of the Company or any of its SubsidiarySubsidiaries, or any creation of any security interest in any such assets or properties;
(n) outstanding loan by the Company or any of its Subsidiary Subsidiaries to any Personperson or entity, or purchase by the Company or its Subsidiary 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 Subsidiary Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreementIndebtedness, guaranteeing by the Company or any of its Subsidiary Subsidiaries of any additional indebtednessIndebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiary Subsidiaries or guaranteeing of any debt securities of others, except for advances to employees Company Personnel for travel and business expenses in the ordinary course of business consistent with past practicesbusiness;
(po) the granting of any waiver or release by the Company or any of its Subsidiaries of any right or claim of the Company or its Subsidiaryclaim, including any write-off or other compromise of any account receivable of the Company or any of its SubsidiarySubsidiaries;
(qp) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat or, to the Knowledge of the Company, threat, of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingSubsidiaries;
(rq) 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 Subsidiary Subsidiaries of the Company Intellectual Property owned by or intellectual property owned, developed or created by the Company or any of its Subsidiary Subsidiaries, or of the Content, any claim or potential claim of infringement by the Company or any of its Subsidiary Subsidiaries of any other Personperson’s Intellectual Property or rights to music or other contentintellectual property;
(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 Subsidiary, Subsidiaries of any shares of Company Units Capital Stock or any stock or securities in its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital Stock or any stock or securities in 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 or any stock or securities in its Subsidiaries upon the exercise thereof;
(ts) other than in the ordinary course of business, (i) sale, lease, sale or license by the Company or transfer any of its Subsidiaries of any Content Company Intellectual Property or execution, modification or amendment execution of any agreement with respect to Content with any PersonCompany Intellectual Property, or (ii) purchase or license by the Company or any of its Subsidiaries of any music Intellectual Property or other content or execution, modification or amendment execution of any agreement with respect to the music or other content Intellectual Property of any Personperson or entity, (iii) agreement by the Company or modification or amendment any of an existing agreement its Subsidiaries with respect to the development of any Channel OutletIntellectual Property with a third party, or (iv) material change in pricing or royalties set or charged by the Company or any of its Subsidiary for the license, purchase Subsidiaries to their customers or use of the Content licensees or in pricing or royalties set or charged by Persons persons who have conveyed Content licensed Intellectual Property to the Company or any of its Subsidiary; Subsidiaries, except, in each case, in the ordinary course of business and consistent with past practices;
(t) agreement or material modification to any agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(u) any event or condition of any character that has had or would reasonably be expected to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bbv) agreement by the Company or any of its SubsidiarySubsidiaries, or any officer or employees employee on behalf of the Company or any of its SubsidiarySubsidiaries, to do any of the things described in the preceding clauses (a) through (aau) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements)2.9.
Appears in 1 contract
No Changes. Since the Balance Sheet DateDecember 31, 2002, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary except in the ordinary course of business as conducted on that date and consistent with past practicespractice;
(b) modifications, amendments or changes to the Charter Documents Certificate of Incorporation or the organizational documents Bylaws of the SubsidiaryCompany;
(c) capital expenditure or capital expenditure commitment by the Company exceeding $10,000 individually or $50,000 25,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaryotherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities recorded 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 loss of any material customer of the Company or its Subsidiary (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 its Subsidiaryaction;
(g) adoption or material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaryother than as required by GAAP;
(h) adoption of or change in any material election in respect of TaxesTaxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivableits assets;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any share of Company Unitscapital stock, or any split, combination or reclassification in respect of any share of Company capital stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share of Company Unitscapital stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any share of Company Units capital stock (or options, warrants options or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase in or other change to the salary or other compensation (cash, equity or otherwise) payable or to become payable by the Company or its Subsidiary to any of their its officers, employeesdirectors, consultants employees or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation (cash, equity or otherwise) to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their its assets is are bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license lease or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, or any creation of any security interest in such material assets or material properties;
(n) loan by the Company or its Subsidiary to any Personperson or entity, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 practicespractice that are set forth on Section 2.9(n) of the Disclosure Schedule;
(po) waiver or release of any right or claim of the Company or its SubsidiaryCompany, including any write-off or other compromise of any account receivable of the Company or its SubsidiaryCompany;
(qp) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assetsaffairs, or any reasonable basis for any of the foregoing;
(rq) notice to the Company or its directors of any claim or potential claim of ownership, interest or right ownership by any Person person other than the Company or its Subsidiary of the Company Intellectual Property (as defined in Section 2.13 below) owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s person's Intellectual Property or rights to music or other content(as defined in Section 2.13 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 its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Unitscapital stock, or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(ts) other than in the ordinary course of business, any (i) sale, lease, sale or license or transfer of any Content Company Intellectual Property or execution, modification or amendment entering into of any agreement with respect to Content the Company Intellectual Property with any Person, person or entity or with respect to the Intellectual Property of any person or entity; (ii) purchase or license of any music Intellectual Property or other content or execution, modification or amendment entering into of any agreement with respect to the music or other content Intellectual Property of any Personperson or entity, (iii) agreement or modification or amendment with respect to the development of an existing agreement any Intellectual Property with any Channel Outleta third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons persons who have conveyed Content licensed Intellectual Property to the Company Company;
(t) agreement or its Subsidiary; modification to any agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(u) hiring or termination of employees of the Company;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in Effect on the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its SubsidiaryCompany; or
(bbw) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aav) of this Section 2.10 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any Related AgreementsAgreement).
Appears in 1 contract
Sources: Merger Agreement (Xicor Inc)
No Changes. Since Except as provided in Section 2.10 of the Disclosure Schedule, since the Balance Sheet DateDate through the date of this Agreement, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary 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 the organizational documents of the SubsidiaryCompany;
(c) third party capital expenditure or capital commitment by the Company exceeding $10,000 individually or $50,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its SubsidiaryCompany), other than (i) payments, discharges or satisfactions in the ordinary course of business business, consistent with past practices, of liabilities recorded 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;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or loss of any material customer of the Company or its Subsidiary (whether or not covered by insurance);
(f) 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 its SubsidiaryCompany;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its SubsidiaryCompany;
(h) adoption of or change in any material Tax (as defined in Section 2.11) election in or any Tax accounting method, entering into any closing agreement with respect of to Taxes, adoption settlement or change in any accounting method in respect of Taxes, agreement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) material revaluation by the Company or its Subsidiary of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCommon Stock, or any split, combination or reclassification in respect of any shares of Company Common Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCommon Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Common Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their its respective officers, directors, employees, consultants or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(l) agreemententry into a Material Contract, contracttermination or extension of a Material Contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, material amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency AgreementMaterial Contract;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiaryoutside of the ordinary course of business, consistent with past practices, including the sale of any accounts receivable of the Company or its SubsidiaryCompany, or any creation of any security interest in such assets or properties;
(n) loan by the Company or its Subsidiary to any Personperson or entity, or purchase by the Company or its Subsidiary of any debt securities of any Person person or amendment entity, except for advances to employees for travel and business expenses in the terms ordinary course of any outstanding loan agreementbusiness, consistent with past practices;
(o) incurring incurrence by the Company or its Subsidiary of any indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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;
(p) waiver or release of any material right or claim of the Company or its SubsidiaryCompany, including any write-off or other compromise of any material account receivable of the Company or its SubsidiaryCompany;
(q) commencement or settlement of any lawsuit by the Company or its SubsidiaryCompany, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingCompany;
(r) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or its a Company Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, (as defined in Section 2.14 hereof) or of infringement by the Company or its Subsidiary of any other Personperson’s Intellectual Property or rights to music or other contentRights (as defined in Section 2.14 hereof);
(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 its Subsidiary, of any shares of Company Units Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Units, Common Stock or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of options under the Plan and issuances of Company Common Stock upon the exercise of options issued under the Plan;
(t) of the following, other than in connection with agreements entered into in the ordinary course of business, consistent with past practice, on the Company’s standard form without material modification: (i) sale, lease, sale or license or transfer of any Content Company Intellectual Property to, or execution, material modification or material amendment of any agreement with respect to Content with any PersonCompany Intellectual Property with, any person or entity, (ii) purchase or license of any music or other content third-party Intellectual Property Rights from, or execution, material modification or material amendment of any agreement with respect to the music any third-party Intellectual Property Rights with, any person or other content of any Personentity, (iii) agreement agreement, or material modification or material amendment of an existing agreement agreement, with respect to the development of any Channel OutletContent & Technology or Intellectual Property Rights, with a third party, or (iv) material change in pricing or royalties set or charged by the Company or to its Subsidiary for the licenselicensees, purchase or use of the Content or in pricing or royalties set or charged by Persons persons who have conveyed licensed Content & Technology or Intellectual Property Rights to the Company or its Subsidiary; Company;
(u) agreement or material modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Product;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vw) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its SubsidiaryCompany; or
(bbx) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aaw) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by execution of this Agreement and any the Related AgreementsAgreements to which the Company is a party).
Appears in 1 contract
No Changes. Since the date of the Current Balance Sheet DateSheet, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) commitment or transaction by the Company or any of its Subsidiary 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 Articles of Incorporation, Bylaws or other organizational documents, as the organizational documents case may be, of the SubsidiaryCompany or any of its Subsidiaries;
(c) capital expenditure or capital commitment exceeding $10,000 individually or $50,000 change in the aggregateCompany’s or any of its Subsidiaries authorized capital structure;
(d) other than capital expenditures, lease commitments or capital commitments by the payment Company or any of Third Party Expensesits Subsidiaries, either individually exceeding $100,000 or in the aggregate exceeding $200,000;
(e) payment, discharge, waiver discharge or satisfactionsatisfaction by the Company or any of its Subsidiaries, in any amount in excess of $5,000 100,000 in any one case, case or $10,000 200,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaryotherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction (i) of any Borrowed Money Indebtedness, or (ii) in the ordinary course of business of other liabilities recorded reflected or reserved against in the Current Balance Sheet, or arising thereafter in the ordinary course of business;
(ef) destruction of, damage to, to or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or its Subsidiary Assets (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 in excess of wrongful discharge or other unlawful employment or labor practice or action with respect to $200,000 in the Company or its Subsidiaryaggregate;
(g) adoption revaluation by the Company or any of its Subsidiaries of any of their respective Assets;
(h) change, event or effect that has had a Material Adverse Effect on the Company or any of its Subsidiaries;
(i) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any of its SubsidiarySubsidiaries, including, but not limited to, any change made in accordance with GAAP;
(hj) adoption of or change in any election material election in with respect of to Taxes, adoption or change in any material accounting method in respect of Taxes, agreement or settlement of any material claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any material claim or assessment in respect of Taxes, or material amendment or change of any Return;
(i) revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(jk) declaration, setting aside or payment of a dividend or other distribution with respect to the shares in the capital of the Company, or any distribution (whether in cash split, combination or property) reclassification in respect of any Company Unitsshares in the capital of the Company, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for Company Unitsshares in the capital of the Company, or any direct or indirect repurchase, redemption, repurchase or other acquisition by the Company of any shares in the capital of the Company Units (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyShare Option Plan;
(k) (il) increase in or other change to the salary or other compensation payable or to become payable by the Company or any of its Subsidiary Subsidiaries to any of their its officers, employees, consultants directors or advisors, employees (iiother than increases in the ordinary course of business for employees who are not executive officers) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) payment, by the Company or any of its Subsidiary Subsidiaries, of a severance payment, termination payment, change in control payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed Person except as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee otherwise contemplated by this Agreement;
(lm) agreement, contract, covenant, instrument, lease, license or commitment to which termination by the Company or (other than expiration in accordance with its Subsidiary is a party or terms), extension by which it or any of the Company (other than renewal in accordance with its assets (whether tangible or intangible) are bound or any terminationterms), extension, material amendment or material modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which Contract set forth on the Company or its Subsidiary is a party or by which it or any of their assets is bound, Disclosure Schedules other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, or any creation of any security interest in such assets or properties;
(n) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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;
(n) sale, lease, assignment, license or other disposition of any of the Assets of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practices;
(o) 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 indebtedness for borrowed money, guaranteeing by the Company or any of its Subsidiaries of any indebtedness for borrowed money of others, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing of any debt securities of others;
(p) waiver or release of any material right or claim of the Company or any of its SubsidiarySubsidiaries, including any write-off or other compromise of any account receivable of the Company or any of its SubsidiarySubsidiaries;
(q) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingSubsidiaries;
(r) notice of any claim issuance or potential claim of ownershipsale, interest or right by any Person other than the Company contract or its Subsidiary of the Company Intellectual Property owned by agreement to issue or developed or created sell, by the Company or any of its Subsidiary or Subsidiaries of any of shares in the capital of the ContentCompany or securities exchangeable, convertible or exercisable therefor, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property of its securities, except for, in the case of the Company, issuances or rights to music sales of shares in the capital of Company upon the exercise of Company Share Options or other contentCompany Warrants outstanding as of the date of this Agreement;
(s) issuance, grant, delivery, sale transfer or purchase, license to or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of from any Person any Intellectual Property Rights (including any Company Units Intellectual Property) or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification entry into or amendment of any agreement with respect to Content any Person regarding any Intellectual Property Rights (including any Company Intellectual Property), except in the ordinary course of business consistent with any Person, past practice or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content development of any Person, (iii) agreement or modification Intellectual Property with a third party or amendment of an existing any such agreement except in the ordinary course of business consistent with any Channel Outletpast practice, or (iviii) change in pricing or royalties set or charged by the Company or any of its Subsidiary for the license, purchase Subsidiaries to its customers or use of the Content licensees or in pricing or royalties set or charged by Persons persons who have conveyed Content licensed Intellectual Property or Intellectual Property Rights to the Company or any of its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution marketSubsidiaries;
(vt) purchase agreement or sale modification to any material agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any interest in real property, granting of type or scope with respect to any security interest in any real property products or lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 services of the Company or any of its SubsidiarySubsidiaries or Company Intellectual Property;
(xu) execution of any strategic alliancefailure to pay or otherwise satisfy its monetary obligations as they become due, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiaryexcept such as are being contested in good faith; or
(bbv) agreement by the Company or any of its Subsidiary, Subsidiaries or any officer or employees employee on behalf of the Company or any of its Subsidiary, Subsidiaries to do any of the things described in the preceding clauses (a) through (aa) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreementsu).
Appears in 1 contract
Sources: Transaction Agreement (Avocent Corp)
No Changes. Since From the Balance Sheet DateDate through the date of this Agreement, there has not been, occurred or arisen, other than in connection arisen with this Agreement respect to the Company and the Merger, 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 Subsidiary 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 the Subsidiary;
(c) capital expenditure or capital commitment exceeding $10,000 individually or $50,000 in the aggregateDocuments;
(d) other than the payment of Third Party Expenses, payment, discharge, release, waiver or satisfactionsatisfaction of any claim or right, or Liability in any an amount in excess of $5,000 10,000, in any one case, or $10,000 25,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiary), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 Subsidiary 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 its SubsidiaryFair 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 its Subsidiarybilling and invoicing policies);
(h) adoption of or change in any material election Tax accounting 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, adoption filing or change in any accounting method in respect of Taxes, agreement or settlement amending of any Return, surrendering of any right to claim or assessment in respect a 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 in respect of Taxesassessment;
(i) revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(ji) declaration, setting aside aside, or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCommon Stock, (ii) any split, combination or reclassification in respect of any shares of Company Common Stock, (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, Company UnitsCommon Stock, or (iv) any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Common Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except ;
(j) (i) in accordance with termination or extension, or amendment, waiver or modification of the agreements evidencing Company Unvested Unitsterms, and of any Specified Contract not specifically required by the terms thereof, (ii) a cash distribution in an amount equal to up to forty-five percent (45%) breach of the estimated net taxable income (within the meaning of Section 703 of the Code and or default under any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger Specified Contract or the other transactions contemplated hereunder; (B) income and expenses occurrence of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Companyevent or condition which, with the approval giving of Purchasernotice or the passage of time or both, may select; and could constitute such a breach or default or (Ciii) Purchaser shall have reviewed and approved any renewal of the calculation of such estimated net taxable income of the Company any Specified Contracts prior to any such distribution by the Companytheir existing renewal dates;
(k) (i) increase in any issuance or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their officers, employees, consultants or advisors, (ii) the declaration, payment or commitment or obligation authorization of any kind for the payment (whether issuance of any other securities in cash or equity) by the Company or its Subsidiary of a severance paymentrespect of, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandumin lieu of, or (iii) adoption or amendment in substitution for shares of any Company Employee Plan, or execution or amendment of any Employee AgreementCommon Stock;
(l) agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, leasesublease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its SubsidiarySubsidiaries, including the sale of any accounts receivable of the Company or any of its SubsidiarySubsidiaries, 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) loan by the Company or any of its Subsidiary Subsidiaries to any Person, or purchase forgiveness by the Company or any of its Subsidiary Subsidiaries of any debt securities of loan to any Person or amendment to the terms of any outstanding loan agreement;
(o) Person, incurring by the Company or any of its Subsidiary Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreementIndebtedness, guaranteeing by the Company or any of its Subsidiary Subsidiaries of any additional indebtednessIndebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiary 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;
(n) commencement, settlement, written notice or threat of any lawsuit or proceeding or other investigation against or involving the Company or any of its Subsidiaries or any of their respective properties, assets, business or affairs;
(o) any claim or notice of any potential claim of ownership by any Person, other than the Company or any of its Subsidiaries, of Company Intellectual Property, or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property Rights;
(p) issuance or sale, or Contract or undertaking to issue or sell by the Company (i) any shares of Company Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, or (ii) any securities, warrants, options or rights to purchase any of the foregoing;
(q) sale, lease or license (or offer to sell, lease or license) of any Company or any of its Subsidiaries’ Intellectual Property Rights or Company Product or 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 (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), (ii) purchase or license of any Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than licenses for Generally 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 regard to development of any Intellectual Property with a third party, or (v) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company 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);
(r) (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 of any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar right of any type or scope with regard to any Company Intellectual Property or 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;
(w) acceleration or 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 cause the Company’s working capital position to differ from historical levels and trends;
(x) 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 Subsidiary, including any write-off or other compromise of any account receivable of the Company or its SubsidiarySubsidiaries;
(q) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vy) 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 SubsidiarySubsidiaries;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(xz) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;Subsidiaries; or
(aa) cancellation, amendment agreement or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement commitment by the Company or any of its SubsidiarySubsidiaries, or any officer or employees Employee on behalf of the Company or any of its SubsidiarySubsidiaries, to do any of the things described in the preceding clauses (a) through (aa) z), inclusive, of this Section 2.10 3.9 (other than negotiations with Purchaser Parent and the Members and their representatives its Representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
No Changes. Since Except as set forth in Section 2.9 of the Company Disclosure Schedule or as contemplated by this Agreement or the Related Agreements, since the Balance Sheet Date, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or any of its Subsidiary Subsidiaries except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to any of the Company Charter Documents or the organizational documents of the SubsidiarySubsidiary Charter Documents;
(c) capital expenditure or capital commitment by the Company or any of its Subsidiaries exceeding $10,000 30,000 individually or $50,000 70,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, 30,000 individually or $10,000 70,000 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 SubsidiarySubsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 Subsidiary 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 SubsidiarySubsidiaries;
(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 SubsidiarySubsidiaries other than as required by GAAP;
(h) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or any of its Subsidiary Subsidiaries of any of their its assets (whether tangible or intangible), including without limitation, writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any a dividend on, or other distribution (whether in cash cash, stock or property) in respect of, any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company UnitsStock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for Company Unitsshares of Capital Stock, or any direct or indirect repurchasepurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) for repurchases from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior employees following their termination pursuant to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval terms of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Companytheir pre-existing stock option or purchase agreements;
(k) (i) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary any of the Subsidiaries to any of their respective officers, employeesdirectors, consultants employees or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiary Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such Personperson, other than except to non-officer level employees in the declaration and payment ordinary course of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed business as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementconducted consistent with past practices;
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition (other than in the ordinary course of business consistent with past practices) of any of the assets (whether tangible or intangible) or properties of the Company or any of its SubsidiarySubsidiaries, including including, but not limited to, the sale of any accounts receivable of the Company or any of its SubsidiarySubsidiaries, or any creation of any security interest in such assets or properties;
(nm) loan by the Company or any of its Subsidiary Subsidiaries to any Personperson or entity, or purchase by the Company or any of its Subsidiary Subsidiaries of any debt securities of any Person person or amendment to the terms of any outstanding loan agreemententity;
(on) incurring by the Company or any of its Subsidiary Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiary Subsidiaries of any additional indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiary 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 right or claim of the Company or any of its SubsidiarySubsidiaries, including any write-off or other compromise of any account receivable of the Company or any of its SubsidiarySubsidiaries;
(qp) commencement or settlement of any lawsuit by the Company or any of its SubsidiarySubsidiaries, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties Subsidiaries or assetstheir affairs, or any reasonable basis for any of the foregoing;
(rq) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or any of its Subsidiary Subsidiaries of the Company Intellectual Property Rights (as defined in Section 2.13 hereof) owned by or developed or created by the Company or any of its Subsidiary or of the Content, Subsidiaries or of infringement by the Company or any of its Subsidiary Subsidiaries of any other Personperson’s Intellectual Property or rights to music or other content(as defined in Section 2.13 hereof);
(sr) 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 Subsidiary, Subsidiaries of any shares of Company Units Capital Stock or shares of Capital Stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital 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 Company Options or Company Warrants reflected on Section 2.2(b) of the Company Disclosure Schedule or Company Capital Stock upon the exercise of Company Options issued under the Plan;
(ts) (i) sale or license of any Company Intellectual Property (other than nonexclusive licenses of products to customers in the ordinary course of business, (ibusiness consistent with past practices) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music Company Intellectual Property Rights with any person or other content entity or with respect to the Intellectual Property or Intellectual Property Rights of any Personperson or entity, (ii) purchase or license of any Intellectual Property or Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property or Intellectual Property Rights of any person or entity, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content respect to the Company or its Subsidiary; (u) event or condition development of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 Intellectual Property or other real property by the Company or its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aa) of this Section 2.10 (other than negotiations Intellectual Property Rights with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements).a third party,
Appears in 1 contract
Sources: Merger Agreement (Nanometrics Inc)
No Changes. Since the Balance Sheet Date, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary 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 other organizational documents of other than the SubsidiaryCharter Amendment contemplated by this Agreement;
(c) capital expenditure or capital commitment by the Company exceeding $10,000 100,000 individually or $50,000 200,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 50,000 in any one case, or $10,000 100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise Liabilities of the Company or its Subsidiary)Company, other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of liabilities recorded the Company 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 its Subsidiary (whether or not covered by insurance);
(f) employment dispute, including including, claims or matters raised by any individual, Governmental Entity, individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or its SubsidiaryCompany;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaryother than as required by GAAP;
(h) adoption of or change in any material election Tax (as defined in respect of TaxesSection 2.10(a) hereof) election, adoption of or change in any Tax accounting method in respect of Taxesmethod, agreement entry into any closing agreement, settlement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company or its Subsidiary of any of their its assets (whether tangible or intangible), including without limitation, writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their its respective officers, employeesdirectors, consultants employees or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, person other than in the declaration and payment ordinary course of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementbusiness consistent with past practices;
(l) agreement, contract, covenant, instrument, lease, license or commitment Contract to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment Contract to which the Company or its Subsidiary is a party or by which it or any of their its assets is are bound, other than pursuant to except in the Company’s Standard Form ordinary course of Agency Agreementbusiness consistent with past practices;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiaryoutside of the ordinary course of business, including including, but not limited to, the sale of any accounts receivable of the Company or its SubsidiaryCompany, or any creation of any security interest in such assets or properties;
(n) loan by the Company or its Subsidiary to any Personperson or entity, or purchase by the Company or its Subsidiary of any debt securities of any Person person or amendment entity except for advances to employees for travel and business expenses in the terms ordinary course of any outstanding loan agreementbusiness consistent with past practices;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 practicespractice;
(p) waiver or release of any right or claim of the Company or its SubsidiaryCompany, including any write-off or other compromise of any account receivable of the Company or its SubsidiaryCompany;
(q) commencement or settlement of any lawsuit Action by the Company or its SubsidiaryCompany, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit Action or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assetsaffairs, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, (as defined in Section 2.13 hereof) or of infringement by the Company or its Subsidiary of any other Personperson’s Intellectual Property or rights to music or other content(as defined in Section 2.13 hereof);
(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 its Subsidiary, of any shares of Company Units Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital Stock, or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(ti) other than except standard end user licenses entered into in the ordinary course of business, (i) saleconsistent with past practice, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase sale or license of any music or other content Company Intellectual Property or execution, modification or amendment of any agreement with respect to the music Company Intellectual Property with any person or other content entity or with respect to the Intellectual Property of any Personperson or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Channel OutletIntellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons persons who have conveyed Content licensed Intellectual Property to the Company or its Subsidiary; Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vw) 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 its Subsidiary;
(wexcept as otherwise disclosed in Section 2.12(a) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;Disclosure Schedule; or
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its SubsidiaryCompany, or any officer or employees on behalf of the Company or its SubsidiaryCompany, to do any of the things described in the preceding clauses (a) through (aaw) of this Section 2.10 2.9 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any the 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 hereof, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary 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 the any Subsidiary;
(c) capital expenditure expenditure, transaction or capital commitment exceeding $10,000 25,000 individually or $50,000 75,000 in the aggregateaggregate 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) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 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 SubsidiarySubsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 Subsidiary 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 SubsidiarySubsidiaries;
(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 SubsidiarySubsidiaries other than as required by GAAP;
(h) adoption of or change in any Tax accounting method or material election Tax election, closing agreement in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company or any of its Subsidiary Subsidiaries of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital 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 UnitsCapital 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 Units Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) material increase in or other change to the salary or other compensation payable or to become payable by the Company or any of its Subsidiary Subsidiaries to any of their respective officers, directors, employees, consultants or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash cash, equity or equityother property) by the Company or any of its Subsidiary Subsidiaries of a severance payment, change of control payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(l) agreementany termination or extension, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extensionmaterial waiver, amendment or modification of the terms of any agreement, contract, covenant, instrument, leaselease (including, without limitation, all Lease Agreements), license or commitment to which the Company or any of its Subsidiary Subsidiaries is a party or by which it or any of their respective assets is are bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(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 SubsidiarySubsidiaries, including the sale of any accounts receivable of the Company or any of its SubsidiarySubsidiaries, or any creation of any security interest in such assets or properties;
(n) material loan by the Company or any of its Subsidiary Subsidiaries to any Person, or purchase by the Company or any of its Subsidiary 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 Subsidiary Subsidiaries of any material indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiary Subsidiaries of any additional indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiary 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 SubsidiarySubsidiaries, including any write-off waiver, release or other compromise of any account receivable of the Company or any of its SubsidiarySubsidiaries;
(q) commencement or settlement of any lawsuit by the Company or any of its SubsidiarySubsidiaries, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiary Subsidiaries or relating to any of its 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 or any of its Subsidiary Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiary or of the Content, Subsidiaries or of infringement by the Company or any of its Subsidiary Subsidiaries of any other Person’s Intellectual Property or rights to music or other contentProperty;
(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 SubsidiarySubsidiaries, of any shares of Company Units Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital 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) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content Company Intellectual Property or execution, modification or amendment of any agreement with respect to Content Company Intellectual Property with any PersonPerson 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 music or other content Intellectual Property or execution, modification or amendment of any agreement with respect to the music or other content 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 Channel OutletIntellectual 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 Subsidiary for the license, purchase Subsidiaries to their respective customers or use of the Content licensees or in pricing or royalties set or charged by Persons who have conveyed Content licensed Intellectual Property to the Company or its Subsidiary; 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, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vw) 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 SubsidiarySubsidiaries;
(wx) acquisition by the Company or any of its Subsidiary Subsidiaries or agreement by the Company or any of its Subsidiary 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 SubsidiarySubsidiaries;
(xy) 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 SubsidiarySubsidiaries;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(zbb) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiaryemployees; or
(bbcc) agreement by the Company or any of its SubsidiarySubsidiaries, or any officer or employees on behalf of the Company or any of its SubsidiarySubsidiaries, to do any of the things described in the preceding clauses (a) through (aabb) of this Section 2.10 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement Agreement, any Related Agreements and any Employment Related Agreements).
Appears in 1 contract
No Changes. Since Between the date of the Current Balance Sheet Dateand the date of this Agreement, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) material transaction by the Company or its Subsidiary 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 certificate of incorporation or the organizational documents bylaws of the SubsidiaryCompany or any of its Subsidiaries, except as expressly contemplated by this Agreement;
(c) capital expenditure or capital commitment by the Company or its Subsidiaries exceeding $10,000 5,000 individually or $50,000 25,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 25,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, whether fixed or accrued, asserted absolute or unassertedcontingent, contingent matured or otherwise of the Company unmatured, determined or its Subsidiarydeterminable or otherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities recorded reflected on or reserved against in the Current Balance Sheet and current liabilities incurred since 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 its Subsidiary (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 its Subsidiary;
(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, or depreciation or amortization policies or rates) by the Company or its SubsidiarySubsidiaries other than as required by GAAP;
(hf) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ig) revaluation by the Company or its Subsidiary Subsidiaries of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(jh) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger Options or the other transactions contemplated hereunder; (B) income and expenses issuance of the Unvested Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyCommon Stock;
(k) (i) material increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary Subsidiaries to any of their officers, employees, consultants directors or advisors, (ii) Employees or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 Person (except pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementpre-existing bonus plans and amounts earned thereunder as previously disclosed to Parent);
(lj) agreementany termination or extension, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any terminationamendment, extension, amendment waiver or modification of the terms terms, of any agreementContract required to be disclosed in Section 3.14 of the Company Disclosure Schedule (other than terminations in connection with the scheduled end of the term of such Contract);
(k) except in the ordinary course of business consistent with past practices, contract, covenant, instrumentsale, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, leasesublease, license or other disposition of any of the material assets (whether tangible or intangible) or properties of the Company or its SubsidiarySubsidiaries, including the sale of any accounts receivable of the Company or its SubsidiarySubsidiaries, or any creation of any security interest Lien (other than Permitted Liens) in such assets or properties;
(nl) loan by the Company or its Subsidiary Subsidiaries to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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), incurring by the Company or its Subsidiaries of any indebtedness for money borrowed, guaranteeing by the Company or its Subsidiaries of any indebtedness for money borrowed, issuance or sale of any debt securities of the Company or its Subsidiaries or guaranteeing of any debt securities of others, except for trade payables and advances to employees for travel and business expenses, in each case in the ordinary course of business consistent with past practices;
(pm) waiver or release of any material right or claim of the Company or its Subsidiaryclaim, including any write-off off, discount or other compromise of any account receivable of the Company or its SubsidiarySubsidiaries, other than write-offs of accounts receivable in the ordinary course of business consistent with past practices;
(qn) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingSubsidiaries;
(ro) notice of any claim or potential claim of ownership, interest or right ownership by any Person other than the Company or its Subsidiary Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, Subsidiaries or of infringement by the Company or its Subsidiary Subsidiaries of any other Person’s Intellectual Property or rights to music or other contentRights;
(sp) issuance, grant, delivery, (i) sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, license of any Company Units Intellectual Property or securities convertible intoexecution of any agreement with respect to the Company Intellectual Property with any Person, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music Intellectual Property Rights or other content or execution, modification or amendment execution of any agreement with respect to the music or other content Intellectual Property Rights of any PersonPerson (other than the Company), other than ordinary course shrink wrap software agreements for internal operations, (iii) agreement or modification or amendment with respect to the development of an existing agreement any Intellectual Property Rights with any Channel Outleta third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons persons who have conveyed Content licensed Intellectual Property Rights to the Company or its Subsidiary; Company;
(uq) circumstance, change, event or condition effect of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser is or is reasonably likely to be material and other participants in adversely affect the digital distribution market;Company; or
(vr) purchase written 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or oral agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its SubsidiarySubsidiaries, or any officer or employees employee on behalf of the Company or its SubsidiarySubsidiaries, to do any of the things described in the preceding clauses (a) through (aa) q), inclusive, of this Section 2.10 3.9 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any Related AgreementsAgreement).
Appears in 1 contract
No Changes. Since the Balance Sheet DateMarch 31, 2002, except as specifically permitted by any other provision of this Agreement, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by amendments or changes to the certificate of incorporation or bylaws of the Company or its Subsidiary except in any of the ordinary course of business as conducted on that date and consistent with past practicesCompany Subsidiaries;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of the Subsidiary;
(c) capital expenditure or capital commitment by the Company or any Company Subsidiary exceeding $10,000 25,000 individually or $50,000 250,000 in the aggregate;
(dc) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 250,000 in the aggregate, of any liability, indebtedness, obligation, expense, claim, liabilitydeficiency, right guaranty or obligation (endorsement of any type, whether accrued, absolute, accruedcontingent, asserted matured or unasserted, contingent or otherwise of the Company or its Subsidiaryunmatured (a "Liability"), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities recorded 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 material customer of the Company or its any Company Subsidiary (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 its Subsidiary;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaryany Company Subsidiary other than as required by GAAP;
(hf) adoption of or (i) change in any material election in respect of TaxesTaxes (as defined below), (ii) adoption or change in any accounting method in respect of Taxes, (iii) agreement or settlement of any claim or assessment in respect of Taxes, or (iv) extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; provided, however, the preceding subclauses (iii) and (iv) shall apply only to a material amount of Taxes to the extent that Siemens Corporation has provided an indemnity to the Parent Indemnified Parties pursuant to Section 9.1(a) of this Agreement;
(ig) revaluation for accounting purposes by the Company or its any Company Subsidiary of any of their respective assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any distribution (whether in cash or property) in respect of any Company Units, any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for Company Units, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any Company Units (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (ih) increase in or other change to the salary or other compensation payable or to become payable by the Company or its any Company Subsidiary to any of their officersrespective officer or directors or any of its employees with an annual base salary in excess of $100,000, employees, consultants or advisors, (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its any Company Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(mi) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Company Subsidiary, including including, but not limited to, the sale of any accounts receivable of the Company or its any Company Subsidiary, or any creation of any security interest in such assets or propertiesproperties other than (i) the sale, lease, license or other disposition of inventory in the ordinary course of business consistent with past practice and (ii) sales, leases, licenses or other dispositions not involving in excess of $25,000 individually or $250,000 in the aggregate of proceeds;
(nj) loan by the Company or its any Company Subsidiary to any Personperson or entity, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its any Company Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its any Company Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its any Company Subsidiary 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;
(pk) waiver or release of any right or claim of the Company or its any Company Subsidiary, including any write-off or other compromise of any account receivable of the Company or its Subsidiaryany Company Subsidiary exceeding $25,000 individually or $250,000 in the aggregate;
(ql) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bbm) agreement by the Company or its any Company Subsidiary, or any officer or employees on behalf of the Company or its SubsidiaryCompany, to do any of the things described in the preceding clauses (a) through (aal) of this Section 2.10 3.8 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any the 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 Article V hereof, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary 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 the SubsidiaryDocuments;
(c) capital expenditure expenditure, transaction or capital commitment exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregateaggregate or any commitment or transaction of the type described in Section 3.16(a) hereof in any case by the Company;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its SubsidiaryCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 its Subsidiary (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 its SubsidiaryCompany;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaryother than as required by GAAP;
(h) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or its Subsidiary of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase in or other change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company or its Subsidiary to any of their its respective officers, employeesdirectors, consultants employees or advisorsconsultants, or (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance 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, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s directors, employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementconsultants;
(l) agreement, contractContract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contractContract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is are bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its SubsidiaryCompany, including the sale of any accounts receivable of the Company or its SubsidiaryCompany, or any creation of any security interest in such assets or properties;
(n) loan by the Company or its Subsidiary 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 its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 right or claim of the Company or its SubsidiaryCompany, including any write-off waiver, release or other compromise of any account receivable of the Company or its SubsidiaryCompany;
(q) commencement or settlement of any lawsuit by the Company or its SubsidiaryCompany, the commencement, settlement, notice or or, to the knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its their businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other contentProperty;
(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 its SubsidiaryCompany, of (i) any shares of Company Units Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital Stock, 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 options issued under the Plan;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content Company Intellectual Property or execution, modification or amendment of any agreement with respect to Content Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person, or (ii) purchase or license of any music or other content Intellectual Property or execution, modification or amendment of any agreement with respect to the music or other content Intellectual Property of any Person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Channel OutletIntellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons who have conveyed Content licensed Intellectual Property to the Company or its Subsidiary; Company;
(u) event agreement or condition modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any character that has had type or scope with respect to any Company Products or Technology of the Company;
(v) a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vw) 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 its SubsidiaryCompany;
(wx) acquisition by the Company or its Subsidiary of, or agreement by the Company or its 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 its SubsidiaryCompany;
(xy) grant by the Company of any 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 or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement (other than execution of the Company standard at-will offer letter);
(aa) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its SubsidiaryCompany;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(zbb) hiring, promotion, demotion or termination or other change to the employment status or title of any Employeesemployees;
(aacc) 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 its Subsidiary$100,000 in the aggregate; or
(bbff) agreement by the Company or its SubsidiaryCompany, or any officer or employees on behalf of the Company or its SubsidiaryCompany, to do any of the things described in the preceding clauses (a) through (aaee) of this Section 2.10 3.10 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Supergen Inc)
No Changes. Since the Balance Sheet Date, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) material transaction by the Company or any of its Subsidiary 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 the any Subsidiary;
(c) capital expenditure expenditure, transaction or capital commitment exceeding $10,000 20,000 individually or $50,000 in the aggregateaggregate 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) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction, in any amount in excess of $5,000 20,000 in any one case, or $10,000 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 SubsidiarySubsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 Subsidiary 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 SubsidiarySubsidiaries;
(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 SubsidiarySubsidiaries;
(h) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or any of its Subsidiary Subsidiaries of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets 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 any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital 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 UnitsCapital 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 Units Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal Options or Company Common Stock subject to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Companyvesting;
(k) (iexcept 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 Subsidiary Subsidiaries to any of their respective officers, directors, employees, consultants or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiary Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(l) material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiary Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiary Subsidiaries is a party or by which it or any of their assets is are bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its SubsidiarySubsidiaries, including the sale of any accounts receivable of the Company or any of its SubsidiarySubsidiaries, 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) loan by the Company or any of its Subsidiary 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 Subsidiary Subsidiaries 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 Subsidiary Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiary Subsidiaries of any additional indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiary 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 right or claim of the Company or any of its SubsidiarySubsidiaries, including any write-off waiver, release or other compromise of any account receivable of the Company or any of its SubsidiarySubsidiaries;
(q) (i) commencement or settlement of any lawsuit by the Company or any of its SubsidiarySubsidiaries, the or (ii) commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or any of its Subsidiary Subsidiaries or relating to any of its their businesses, properties or assets, or to the Knowledge of the Company, any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or any of its Subsidiary Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiary or of the Content, Subsidiaries or of infringement by the Company or any of its Subsidiary Subsidiaries of any other Person’s Intellectual Property or rights to music or other content;
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 SubsidiarySubsidiaries, of any shares of Company Units Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital 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 (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; (t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content Company Intellectual Property or execution, modification or amendment of any agreement with respect to Content Company Intellectual Property with any PersonPerson 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 music or other content Intellectual Property or execution, modification or amendment of any agreement with respect to the music or other content Intellectual Property of any Person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Channel OutletIntellectual Property with a third party (other than entering into Employee Proprietary Information Agreements with new employees), or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiary for the license, purchase Subsidiaries to its customers or use of the Content licensees or in pricing or royalties set or charged by Persons who have conveyed Content licensed Intellectual Property to the Company or its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aa) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements).its Subsidiaries;
Appears in 1 contract
Sources: Merger Agreement (Harmonic Inc)
No Changes. Since the date of the Current Balance Sheet DateSheet, except as expressly permitted under, required or specifically consented to by Buyer pursuant to Section 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, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction Contract entered into by the Company or its Subsidiary 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 the organizational documents of the SubsidiaryDocuments;
(c) capital expenditure expenditure, transaction or capital commitment exceeding $10,000 individually or $50,000 20,000 in the aggregateaggregate or any commitment or transaction of the type described in Section 4.13 hereof in any case by the Company;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction, in any amount in excess of $5,000 10,000 in any one case, or $10,000 20,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its SubsidiaryCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded 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 its Subsidiary (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 its SubsidiaryCompany;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaryother than as required by Swedish GAAP;
(h) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) material revaluation by the Company or its Subsidiary of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(j) the declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their respective officers, directors, employees, consultants or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Personperson, other than except for any payments required to be made under the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment terms of any plan or agreement listed in Section 4.23(b)(1) of the Company Employee Plan, or execution or amendment of any Employee AgreementDisclosure Schedule and termination payments required by Swedish law;
(l) agreement, contract, covenant, instrument, lease, license or commitment Contract to which the Company or its Subsidiary is a party or by which it or any of its Company’s assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment Contract to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreementassets are bound;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its SubsidiaryCompany, including the sale of any accounts receivable of the Company or its SubsidiaryCompany, 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) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary 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 its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 its SubsidiaryCompany, including any write-off waiver, release or other compromise of any account receivable of the Company or its Subsidiaryfor which a reserve was not present on the current balance sheet;
(q) commencement or settlement of any lawsuit by the Company or its SubsidiaryCompany, the commencement, settlement, notice or or, to the Knowledge of the Shareholders after reasonable inquiry of the Employees, threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person Person, other than the Company or its Subsidiary Company, of the Company Intellectual Property (as defined in Section 4.15(a)) owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content(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 its SubsidiaryCompany, of any shares of Company Units Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital Stock, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content Company Intellectual Property or execution, modification or amendment of any agreement Contract with respect to Content Company Intellectual Property, except in the ordinary course of business consistent with any Personpast practices (including the sale, lease, or license of the Company’s products to customers), or (ii) purchase or license of any music Intellectual Property from or other content to any Person or execution, modification or amendment of any agreement Contract with respect to the music or other content Intellectual Property of any Person, other than the sale of the Company’ products pursuant to its standard end user license and other terms in the ordinary course of business consistent with past practice, (iii) agreement Contract or modification or amendment of an existing agreement Contract with respect to the development of any Channel OutletIntellectual Property by the Company for a third party or by a third party for the Company, or (iv) change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons who have conveyed Content licensed Company Intellectual Property to the Company or its Subsidiary; except in the ordinary course of business consistent with past practices;
(u) Contract or modification to any 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 Company Intellectual Property except in the ordinary course of business 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, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vw) 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 its SubsidiaryCompany;
(wx) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its SubsidiaryCompany;
(xy) adoption or amendment of any Company Employee Plan, execution or amendment of any Employee Agreement;
(z) execution of any Contract by the Company regarding any strategic alliance, or any affiliate or joint marketing arrangement or agreement by the Company or its Subsidiaryarrangement;
(yaa) any action to accelerate the vesting schedule of any Company Unvested UnitsCapital Stock;
(zbb) hiring, promotion, demotion or termination or other change to the employment status or title of any Employeesemployees;
(aacc) 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 or its Subsidiaryexcept renewals in the ordinary course of business; or
(bbee) agreement by the Company or its SubsidiaryCompany, or any officer or employees on behalf of the Company or its SubsidiaryCompany, to do any of the things described in the preceding clauses (a) through (aaee) of this Section 2.10 4.10 (other than negotiations with Purchaser Buyer and the Members and their its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
No Changes. Since December 31, 2014 and prior to the Balance Sheet Datedate hereof, except as expressly permitted hereunder, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) material transaction by the Company or any of its Subsidiary 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 any organizational documents of the Subsidiaryany of its subsidiaries except as expressly contemplated by this Agreement;
(c) capital expenditure or capital commitment exceeding $10,000 individually or $50,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver or satisfaction, in any amount in excess of $5,000 in any one case, 25,000 individually or $10,000 100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise otherwise) of the Company or of any of its Subsidiary)subsidiaries, other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded reflected or reserved against in the Current Balance Sheet;
(ed) destruction of, damage to, or loss of any material assets of the Company or any of its subsidiaries (whether tangible or intangible), material business of the Company or any subsidiary of the Company or loss of a material customer of the Company or any of its Subsidiary 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 Subsidiarysubsidiaries;
(gf) adoption of or material 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 Subsidiarysubsidiaries;
(hg) making of or change in any material Tax election, adoption of or change in any material election Tax accounting method, settlement or compromise of any Tax claim or assessment or entering into any closing agreement in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(jh) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock or capital stock of any of the Company’s subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital Stock or capital stock of any of the Company’s subsidiaries, 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 UnitsCapital Stock or any capital stock of the Company’s subsidiaries, or any direct or indirect repurchase, redemption, or other acquisition by the Company or any of its subsidiaries of any shares of Company Units Capital Stock or capital stock of any of the Company’s subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested UnitsOptions or restricted stock awards granted under the Plan;
(i) (i) termination or extension, and or material amendment, waiver or modification of the terms, of any Material Contract by the Company or any of its subsidiaries not required by the terms thereof or (ii) breach of or default under any Material Contract by the Company or any of its subsidiaries or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, would reasonably be expected to constitute such a cash distribution in an amount equal to up to forty-five percent breach or default;
(45%j) sale, lease, sublease, license or other disposition of any of the estimated net taxable income material assets (within the meaning of Section 703 of the Code and any comparable provision of California lawwhether tangible or intangible) from operations or material properties of the Company for or any of its subsidiaries, including, but not limited to, the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income sale of any accounts receivable of the Company shall not include or any income arising of its subsidiaries, or any creation of any Lien in such material assets or material properties other than non-exclusive licenses of or agreements to provide (on account of the Merger or the other transactions contemplated hereunder; (Ba hosted basis) income and expenses of Intellectual Property Rights granted by the Company for (not including any period beginning prior to rights in Company Source Code) in the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, ordinary course of business consistent with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Companypast practices;
(k) loan by the Company or any of its subsidiaries to any Person, incurring by the Company or any of its subsidiaries of any Indebtedness for borrowed money, guaranteeing by the Company or any of its subsidiaries of any Indebtedness for borrowed money, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to Employees for travel and business expenses in the ordinary course of business consistent with past practices;
(l) waiver or release of any material right or claim of the Company or any of its subsidiaries;
(m) commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs or any of its subsidiaries and its affairs;
(n) except as set forth in Section 2.2 of the Disclosure Schedule, issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries (i) any shares of Company Capital Stock or shares of capital stock of any of the Company’s subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any subsidiaries of the Company, or (ii) any securities, warrants, options or rights to purchase any of the foregoing;
(o) receipt by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of ownership by any Person other than the Company or any of its subsidiaries of Company IP or of infringement by the Company or any of its subsidiaries of any other Person’s Intellectual Property Rights;
(p) change in pricing or royalties set or charged by the Company or any of its subsidiaries to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company or any of its subsidiaries (other than changes in pricing or royalties made in the ordinary course of business and consistent with past practices);
(q) hiring or termination of any employee of the Company or any of its subsidiaries, 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 or any of its subsidiaries;
(r) (i) increase in or decrease in or other change to the salary salary, wage rates, bonuses, or fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company or any of its Subsidiary subsidiaries to any Employees (other than in the ordinary course of their officers, employees, consultants or advisorsbusiness and consistent with past practices), (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equityequity or otherwise) by the Company or any of its Subsidiary 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 PersonEmployees, other than the declaration and payment of up (iii) promise to an aggregate of $20,850 of bonuses pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandumany Employee, or (iiiiv) adoption adoption, termination or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;
(l) agreement, contract, covenant, instrument, lease, license any employee plan or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, or any creation of any security interest in such assets or properties;
(n) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 right or claim of the Company or its Subsidiary, including any write-off or other compromise of any account receivable of the Company or its Subsidiary;
(q) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating agreement related to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
subsidiaries (r) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary execution of the Company Intellectual Property owned by Company’s standard at-will offer letter) or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other contentcollective bargaining agreement;
(s) issuance, grant, delivery, sale extension of the post-termination exercise period of any Company Options or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by any similar equity awards of the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoingits subsidiaries;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement Material Adverse Effect with respect to the music or other content of any Person, Company and its subsidiaries (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition of any character that has had taken as a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiarywhole); or
(bbu) agreement by the Company or any of its Subsidiarysubsidiaries, or any officer or employees on behalf of the Company or any of its Subsidiarysubsidiaries, to do any of the things described in the preceding clauses (a) through (aat) of this Section 2.10 2.9 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
No Changes. Since the Balance Sheet Datedate of the Interim Financial Statements, there has or have not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary any Subsidiary, which is material to the Company or such Subsidiary, except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Company Constitution or Subsidiary Charter Documents or the organizational documents of the SubsidiaryDocuments;
(c) capital expenditure or capital commitment by the Company or any Subsidiary exceeding $10,000 5,000 individually or $50,000 15,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 15,000 in the aggregate, of any claim, liability, right Liability or obligation (absolute, accrued, asserted or asserted, unasserted, contingent or otherwise of the Company or its Subsidiaryotherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction of claims, liabilities and obligations in the ordinary course of business or of liabilities recorded Liabilities reflected or reserved against in the Current Balance SheetFinancial Statements;
(e) destruction of, damage to, or loss of any material assets with a book value in excess of $5,000 (whether tangible or intangible), material business or material customer ) of the Company or its Subsidiary (any Subsidiary, whether or not covered by insurance);
(f) employment disputeactual, pending or threatened claims by or on behalf of Company Personnel, including any claims relating to termination of employment, workers compensation, illness, negligence, discrimination, bullying, sexual harassment, wage, salary 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 its Subsidiarysuperannuation claims;
(g) adoption or change in accounting methods methods, principles or practices (including any change in depreciation or amortization policies or rates) by the Company or any Subsidiary, or change in the manner the Company or any Subsidiary keeps its Subsidiarybooks and records, or its practices with regard to the booking of sales, receivables, payables or accrued expenses or change in its payment or collection practices;
(h) adoption of or change in any material election in respect of Taxes, adoption or change in any material accounting method in respect of Taxes, material agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or its any Subsidiary of any of their respective assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, redemption or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefortherefor except as contemplated by this Agreement), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) destruction of, damage to, or loss of any assets (iwhether tangible or intangible) of the Company or any Subsidiary with a book value in excess of $5,000 in any one case or $15,000 in the aggregate, whether or not covered by insurance;
(l) an increase in or other change to the base salary or other compensation payable or to become payable by the Company or its any Subsidiary to any of their officersCompany Personnel, employeesor the promise, consultants or advisorspayment, (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its any Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;
(lm) agreement, contract, covenant, instrument, lease, license or commitment entering into of any material Contract to which the Company or its any Subsidiary is a party or by which it they or any of its their respective assets (whether tangible or intangible) are bound or any termination, extension, material amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment material Contract to which the Company or its any Subsidiary is a party or by which it or any of their its assets is are bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(mn) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or its any Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiaryreceivable, or any creation of any security interest in any such material assets or material properties;
(no) any outstanding loan by the Company or its any Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its any Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreementIndebtedness, guaranteeing by the Company or its any Subsidiary of any additional indebtednessIndebtedness, issuance or sale of any debt securities of the Company or its any Subsidiary or guaranteeing of any debt securities of others, except for advances to employees Company Personnel for travel and business expenses in the ordinary course of business consistent with past practicesbusiness;
(p) the granting of any waiver or release by the Company or any Subsidiary of any right or claim of material to the Company or its any Subsidiary, including any write-off or other compromise of any account receivable of the Company or its any Subsidiary;
(q) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or, to the Knowledge of the Company, any Subsidiary or threat the Stockholders, threat, of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingSubsidiary;
(r) notice of any claim or potential claim of ownership, interest or right ownership by any Person other than the Company or its any Subsidiary of the Company Intellectual Property owned by or owned, developed or created by the Company or its Subsidiary any Subsidiary, or of the Content, any claim or potential claim of infringement by the Company or its any Subsidiary of any other Person’s Intellectual Property or rights to music or other contentProperty;
(s) 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 its Subsidiary, any Subsidiary of any shares of Company Units Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital Stock or any stock, or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, sale or license by the Company or transfer any Subsidiary of any Content Company Intellectual Property or execution, modification or amendment execution of any agreement with respect to Content with any PersonCompany Intellectual Property, or (ii) purchase or license by the Company or any Subsidiary of any music Intellectual Property or other content or execution, modification or amendment execution of any agreement with respect to the music or other content Intellectual Property of any Person, (iii) agreement by the Company or modification or amendment any Subsidiary with respect to the development of an existing agreement any Intellectual Property with any Channel Outleta third party, or (iv) material change in pricing or royalties set or charged by the Company or any Subsidiary to its Subsidiary for the license, purchase customers or use of the Content licensees or in pricing or royalties set or charged by Persons who have conveyed Content licensed Intellectual Property to the Company or its any Subsidiary; , except in the case of clause (i) or (ii), with respect to non-exclusive end user licenses of object code in the ordinary course of business and on the Company’s or the applicable Subsidiary’s standard terms and conditions;
(u) agreement or material modification to any Contract pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company or any Subsidiary;
(v) any event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bbw) agreement by the Company or its any Subsidiary, or any officer or employees officer, employee on behalf of the Company or its any Subsidiary, to do any of the things described in the preceding clauses (a) through (aav) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements)2.9.
Appears in 1 contract
No Changes. Since Except as provided in Section 2.10 of the Disclosure Schedule, since the Balance Sheet DateDate through the date of this Agreement, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary except in the ordinary course of business business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of the SubsidiaryCompany;
(c) capital expenditure or capital commitment by the Company exceeding $10,000 50,000 individually or $50,000 250,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its SubsidiaryCompany), other than payments, discharges or satisfactions in the ordinary course of business business, consistent with past practices, of liabilities recorded 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;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or its Subsidiary (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 its SubsidiaryCompany;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaryother than as required by GAAP;
(h) adoption of or change in any material Tax (as defined in Section 2.11) election in or any Tax accounting method, entering into any closing agreement with respect of to Taxes, adoption settlement or change in any accounting method in respect of Taxes, agreement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company or its Subsidiary of any of their its assets (whether tangible or intangible), including without limitation, writing down the value of intangible assets inventory or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their its respective officers, directors, employees, consultants or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is entry into a party or by which it or any of its assets (whether tangible or intangible) are bound Material Contract or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency AgreementMaterial Contract;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiaryoutside of the ordinary course of business, including consistent with past practices, including, but not limited to, the sale of any accounts receivable of the Company or its SubsidiaryCompany, or any creation of any security interest in such assets or properties;
(n) loan by the Company or its Subsidiary to any Personperson or entity, or purchase by the Company or its Subsidiary of any debt securities of any Person person or amendment entity, except for advances to employees for travel and business expenses in the terms ordinary course of business, consistent with past practices, in an amount not to exceed $10,000 in any outstanding loan agreementone case or $25,000 in the aggregate;
(o) incurring incurrence by the Company or its Subsidiary of any indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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;
(p) waiver or release of any material right or claim of the Company or its SubsidiaryCompany, including any write-off or other compromise of any account receivable of the Company or its SubsidiaryCompany;
(q) commencement or settlement of any lawsuit by the Company or its SubsidiaryCompany, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating affairs, or, to any the Knowledge of its businessesthe Company, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person person other than the Company or its a Company Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, (as defined in Section 2.14 hereof) or of infringement by the Company or its Subsidiary of any other Personperson’s Intellectual Property or rights to music or other contentRights (as defined in Section 2.14 hereof);
(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 its Subsidiary, of any shares of Company Units Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCommon Stock, Company Preferred Stock 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 Common Stock upon the exercise of options issued under the Plans;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase sale or license of any music or other content Company Intellectual Property or execution, modification or amendment of any agreement with respect to the music Company Intellectual Property with any person or other content entity or with respect to the Intellectual Property Rights of any Personperson or entity, (ii) except in the ordinary course of business, consistent with past practices, 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 or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Channel OutletTechnology or Intellectual Property Rights with a third party, or (iv) material change in pricing or royalties set or charged by the Company to its distributors or its Subsidiary for the license, purchase resellers or use of the Content licensees or in pricing or royalties set or charged by Persons persons who have conveyed Content licensed Technology or Intellectual Property Rights to the Company or its Subsidiary; Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any product, service or technology of the Company;
(v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vw) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its SubsidiaryCompany; or
(bbx) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aaw) of this Section 2.10 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any the Related Agreements).
Appears in 1 contract
No Changes. Since (a) Except for specific actions or specific matters expressly contemplated by this Agreement (including the establishment and implementation of the Company Severance Plan, the Parent Severance Plan, the Retention Plan and the Escrow Payment Plan and the payment of severance and other benefits pursuant to Section 5.13 or pursuant to the Change of Control Letter Agreements), between the date of the Current Balance Sheet Dateand the date of this Agreement, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(ai) transaction by the Company or any of its Subsidiary 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, as the organizational documents case may be, of the SubsidiaryCompany or any of its Subsidiaries;
(ciii) capital expenditure or capital commitment exceeding $10,000 individually or $50,000 changes in the aggregateCompany’s or any of its Subsidiaries authorized capital structure;
(div) other than capital expenditures or capital commitments by the payment Company or any of Third Party Expensesits 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 $5,000 15,000 in any one case, or or, with respect to the Company and its Subsidiaries as a whole, $10,000 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 its Subsidiaryotherwise), other than paymentspayment, discharges discharge or satisfactions in the ordinary course of business satisfaction of liabilities recorded 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 its Subsidiary (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 its Subsidiary;
(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 SubsidiarySubsidiaries, except pursuant to a change in GAAP;
(hviii) adoption of or change in any material election in by the Company or any of its Subsidiaries with respect of Taxesto 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 Subsidiaries of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(jix) declaration, setting aside or payment of a dividend or other distribution with respect to the Company Capital Stock or any distribution (whether in cash Subsidiary Ownership Interest, or property) any split, combination or reclassification in respect of any Company UnitsCapital Stock or Subsidiary Ownership Interest, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for Company UnitsCapital Stock or Subsidiary Ownership Interest, or any direct or indirect repurchase, redemption, repurchase or other acquisition by the Company of any Company Units Capital Stock or by any of its Subsidiaries of any Subsidiary Ownership Interest (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyOption Plans;
(k) (ix) increase in or other change to the salary or other compensation payable or to become payable by the Company or any of its Subsidiary Subsidiaries to any of their its officers, employeesdirectors, consultants employees or advisors, (ii) advisors or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) payment, by the Company or any of its Subsidiary Subsidiaries, of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(lxi) termination, extension, amendment or modification of the terms of any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiary Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are is bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to in the Company’s Standard Form ordinary course of Agency Agreementbusiness consistent with past practices;
(mxii) sale, lease, license or other disposition of any of the material tangible assets (whether or material tangible or intangible) or properties of the Company or any of its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, or any creation of any security interest in such assets or propertiesSubsidiaries;
(nxiii) loan by the Company or any of its Subsidiary Subsidiaries to or capital investment in any Person, or purchase by the Company or its Subsidiary 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 Subsidiary Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreementindebtedness for borrowed money, guaranteeing by the Company or any of its Subsidiary Subsidiaries of any additional indebtednessindebtedness for borrowed money, issuance or sale of any debt securities of the Company or any of its Subsidiary 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 right or claim of the Company or any of its SubsidiarySubsidiaries, including any write-off or other compromise of any account receivable of the Company or any of its SubsidiarySubsidiaries, 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 Subsidiary, the Subsidiaries or commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against involving the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingCompany;
(rxvi) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content;
(si) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, license of any Company Units Technology or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment execution of any agreement with respect to Content the Company Technology with any person or entity or with respect to the Technology of any Person, or (ii) purchase or license of any music Technology or other content or execution, modification or amendment execution of any agreement with respect to the music or other content Technology of any Person, (iii) agreement or modification or amendment with respect to the development of an existing agreement any Technology with any Channel Outleta third party, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiary for the license, purchase Subsidiaries to its customers or use of the Content licensees or in pricing or royalties set or charged by Persons persons who have conveyed Content licensed Technology to the Company or any its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its SubsidiarySubsidiaries; or
(bbxvii) any agreement by the Company or Company, any of its SubsidiarySubsidiaries, or any officer or employees employee on behalf of the Company or any of its Subsidiary, Subsidiaries to do any of the things described in the preceding clauses (aa)(i) through (aaa)(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:
(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 Subsidiaries in excess of $50,000 in the aggregate;
(ii) to the Company’s Knowledge, any loss of any material business, customer or partner;
(iii) to the Company’s Knowledge, any claim of wrongful discharge or other than negotiations with Purchaser and unlawful labor practice or action asserted against the Members and their representatives regarding 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 transactions contemplated by this Agreement and any Related Agreements)Company.
Appears in 1 contract
No Changes. Since the date of the Current Balance Sheet Dateand except as otherwise not prohibited by Section 4.1 of this Agreement, there has or have not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary except in the ordinary course of business as conducted on that date and consistent with past practicesMaterial Adverse Effect;
(b) modifications, amendments or changes to the Company Charter Documents or the organizational documents of the SubsidiarySubsidiary Charter Documents;
(c) capital expenditure or capital commitment by the Company or any of its Subsidiaries exceeding $10,000 25,000 individually or $50,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 50,000 in the aggregate, of any claim, liability, right claim or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiary)Liability, other than paymentspayment, discharges discharge or satisfactions satisfaction of claims, liabilities and obligations in the ordinary course of business or of liabilities recorded 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 Subsidiary (Subsidiaries with a book value in excess of $25,000 in any one case or $50,000 in the aggregate, 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 disputes or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its SubsidiarySubsidiaries;
(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 SubsidiarySubsidiaries other than as required by GAAP;
(h) adoption change by the Company or any of or change its Subsidiaries in any material election in respect of Taxes, adoption or change in by the Company or any of its Subsidiaries of any accounting method in respect which would materially alter the historic treatment of Taxesan item on a Tax Return, agreement Contract or settlement by the Company or any of its Subsidiaries of any claim or assessment in respect of Taxes, or extension or waiver by the Company or any of its Subsidiaries of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or its Subsidiary of any of their its or its Subsidiaries’ assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock or any stock or securities of its Subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital Stock or any stock or securities in its Subsidiaries, 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 UnitsCapital Stock or any stock or securities in its Subsidiaries, or any direct or indirect repurchase, redemption, redemption or other acquisition by the Company of any shares of Company Units Capital Stock or any stock or securities in its Subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements Contracts evidencing Company Unvested Units, Options and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyRestricted Stock;
(k) (i) increase in or other change to the base salary or other compensation payable or to become payable by the Company or any of its Subsidiary Subsidiaries to any of their officersCompany Personnel, employees, consultants or advisors, (ii) the declaration, payment or payment, commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiary Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its SubsidiarySubsidiaries taken as a whole, including the sale of any accounts receivable of the Company or any of its SubsidiarySubsidiaries, or any creation of any security interest in any such material assets or material properties;
(nm) outstanding loan by the Company or any of its Subsidiary Subsidiaries to any Person, or purchase by the Company or its Subsidiary 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 Subsidiary Subsidiaries of any indebtedness, amendment Indebtedness in an amount in excess of the terms of any outstanding loan agreement$25,000, guaranteeing by the Company or any of its Subsidiary Subsidiaries of any additional indebtednessIndebtedness in an amount in excess of $25,000, issuance or sale of any debt securities of the Company or any of its Subsidiary Subsidiaries or guaranteeing of any debt securities of others, except for advances to employees Company Personnel for travel and business expenses in the ordinary course of business consistent with past practicesbusiness;
(pn) granting of any waiver or release by the Company or any of its Subsidiaries of any right or claim of material to the Company or and its SubsidiarySubsidiaries taken as a whole, including any write-off or other compromise of any account receivable of the Company or any of its SubsidiarySubsidiaries;
(qo) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat or, to the Knowledge of the Company, threat, of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingSubsidiaries;
(rp) notice of any claim or potential claim of ownership, interest or right ownership by any Person other than the Company or any of its Subsidiary Subsidiaries of the Company Owned Intellectual Property owned by or owned, developed or created by the Company or any of its Subsidiary or of the ContentSubsidiaries, or of any claim or potential claim of infringement or misappropriation by the Company or any of its Subsidiary Subsidiaries of any other Person’s Intellectual Property or rights to music or other contentProperty;
(sq) 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 Subsidiary, Subsidiaries of any shares of Company Units Capital Stock or any stock or securities in its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCapital Stock or any stock or securities in 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 or any stock or securities in its Subsidiaries upon the exercise thereof;
(tr) other than in (i) sale or license by the Company or any of its Subsidiaries of any Company Intellectual Property, (ii) purchase or license by the Company or any of its Subsidiaries of any Intellectual Property, (iii) Contract by the Company or any of its Subsidiaries with respect to the development of any Intellectual Property with a third-party outside of the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) material change in pricing or royalties set or charged by the Company or any of its Subsidiary for the license, purchase Subsidiaries to their customers or use of the Content licensees or in pricing or royalties set or charged by Persons who have conveyed Content licensed Intellectual Property to the Company or any of its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse EffectSubsidiaries, other than an event generally affecting Purchaser and other participants except in the digital distribution marketcase of clause (i) or (ii), with respect to non-exclusive end user licenses of object code in the ordinary course of business;
(vs) purchase Contract or sale material modification to any Contract pursuant to which any other party was granted marketing, distribution, development or similar rights of any interest in real property, granting of type or scope with respect to any security interest in any real property products or lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 technology of the Company or any of its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its SubsidiarySubsidiaries; or
(bbt) agreement by the Company or any of its SubsidiarySubsidiaries, or any officer or employees employee on behalf of the Company or any of its SubsidiarySubsidiaries, to do any of the things described in the preceding clauses (a) through (aas) of this Section 2.10 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated by this Agreement and any Related Agreements)2.9.
Appears in 1 contract
Sources: Merger Agreement (Vistaprint N.V.)
No Changes. Since March 31, 1999, except as disclosed in Section 2.9 of the Balance Sheet DateDisclosure Schedule, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its the Subsidiary 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 the Subsidiary;
(c) capital expenditure or capital commitment by the Company or the Subsidiary exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(dc) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 100,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaryotherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities recorded reflected or reserved against in the Current Balance SheetSheet or arising after the date thereof;
(ed) destruction of, material damage to, to or the loss of any material assets (whether tangible or intangible)assets, material business or material customer of the Company or its the Subsidiary (whether or not covered by insurance);
(fe) employment dispute, including claims collective work stoppage or matters raised by any individual, Governmental Entity, or any workers’ representative organization, bargaining unit or union regarding labor trouble strike or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or its Subsidiaryaction;
(gf) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiarythe Subsidiary other than as required by GAAP;
(hg) adoption of or change in any material election in respect of TaxesTaxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ih) revaluation by the Company or its the Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivablerespective assets;
(ji) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock or any split, combination or reclassification in respect of any shares of Company Capital Stock or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock or by the Subsidiary of Subsidiary Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Options or Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyWarrants;
(k) (ij) increase in or other change to the salary or other compensation payable or to become payable by the Company or its the Subsidiary to any of their its officers, employeesdirectors, consultants employees or advisorsadvisors (other than, (ii) in the case of employees who are not officers or directors, increases in salary in the ordinary course consistent with past practice that do not exceed $5,000 per year), or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) payment, by the Company or its Subsidiary the Subsidiary, of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(lk) other than those entered into in the ordinary course of business consistent with past practice, any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its the Subsidiary is a party or by which it or any of its assets (whether tangible or intangibleincluding intangible assets) are bound or any termination, extension, amendment or modification of the terms of any material agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it they or any of their assets is are bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(ml) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, Subsidiary or any creation of any security interest in such material assets or material properties;
(nm) loan by the Company or its the Subsidiary to any Personperson or entity, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its the Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its the Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its the Subsidiary 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 right or claim of the Company or its the Subsidiary, including any write-off or other compromise of any account receivable of the Company or its the Subsidiary;
(qo) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bbp) agreement by the Company or its SubsidiaryCompany, the Subsidiary or any officer or employees on behalf of the Company or its Subsidiary, the Subsidiary to do any of the things described in the preceding clauses (a) through (aau) of this Section 2.10 SECTION 2.9 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any Related AgreementsAgreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Probusiness Services Inc)
No Changes. Since the Balance Sheet DateDate through the date of this Agreement, other than this Agreement and the transactions contemplated hereby, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary except in the ordinary course of business as conducted on that date and business, consistent with past practicespractices and other than the transactions contemplated by this Agreement and the Related Agreements;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of the SubsidiaryCompany other than as contemplated by this Agreement;
(c) capital expenditure agreement, purchase order or capital commitment exceeding by the Company requiring future payments during any calendar year in excess of $10,000 50,000 individually or $50,000 100,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, satisfaction of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiary)Liabilities, other than (i) payments, discharges or satisfactions in the ordinary course of business business, consistent with past practices, (ii) of liabilities recorded Liabilities reflected or reserved against in the Current Balance Sheet, (iii) arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date or (iv) any Liabilities in the aggregate less than $100,000;
(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 its Subsidiary (whether or not covered by insurance);
(f) loss of any customer that represented one of the twenty (20) largest sources of revenue for the Company for any fiscal year after March 1, 2009;
(g) 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 its SubsidiaryCompany;
(gh) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaryother than as required by GAAP;
(hi) adoption of or change in any material Tax election in or any Tax accounting method, entering into any closing agreement with respect of to Taxes, adoption settlement or change in any accounting method in respect of Taxes, agreement or settlement compromise of any Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesassessment;
(ij) revaluation by the Company or its Subsidiary of any of their its assets (whether tangible or intangible), including without limitation, writing down the value of intangible assets or writing off notes or accounts receivableinventory, other than in the ordinary course of business consistent with past practice;
(jk) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except ;
(il) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) hiring or termination of the estimated net taxable income (within the meaning any employee or consultant whose annual compensation or consulting fees exceeded $100,000 of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (im) increase in or other change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company or its Subsidiary to any of their its respective officers, employeesdirectors, employees whose annual compensation exceeded $100,000, consultants or advisors, (ii) or the declaration, adoption, agreement, contract, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;
(ln) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their its assets is are bound, other than pursuant to agreements, contracts, covenants, instruments, leases, licenses or commitments entered into, terminated, extended, amended or modified in the Company’s Standard Form ordinary course of Agency Agreementbusiness, consistent with past practice;
(mo) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiaryoutside of the ordinary course of business, including consistent with past practices, including, but not limited to, the sale of any accounts receivable of the Company or its SubsidiaryAccounts Receivable, or any creation of any security interest in such assets or properties;
(np) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment Person, except for advances to employees for travel and business expenses in the terms ordinary course of any outstanding loan agreementbusiness, consistent with past practices;
(oq) incurring incurrence by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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;
(pr) waiver or release of any material right or claim of the Company or its SubsidiaryCompany, including any write-off or other compromise of any account receivable Accounts Receivable, other than in the ordinary course of the Company or its Subsidiarybusiness consistent with past practice;
(qs) commencement or settlement of any lawsuit by the Company or its SubsidiaryCompany, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or Company, its Subsidiary or relating affairs, or, to any the Knowledge of its businessesthe Company, properties or assets, or any reasonable basis for any of the foregoing;
(rt) claims or matters raised by any individual, Governmental Entity, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company;
(u) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, (as defined in Section 2.14 hereof) or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other contentRights (as defined in Section 2.14 hereof);
(sv) issuance, grant, delivery, sale issuance or purchasesale, or proposal, contract or agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or its Subsidiary, of any shares of Company Units Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCommon Stock, Company Preferred Stock or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of options issued under the Plans;
(ti) other than except standard end user licenses entered into in the ordinary course of business, (i) saleconsistent with past practices, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase sale or license of any music or other content Company Intellectual Property or execution, modification or amendment of any agreement with respect to the music Company Intellectual Property with any Person or other content with respect to the Intellectual Property Rights of any Person, (ii) except in the ordinary course of business, consistent with past practices, 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, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Channel OutletTechnology or Intellectual Property Rights with a third party, or (iv) material adverse change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons who have conveyed Content licensed Technology or Intellectual Property Rights to the Company Company;
(x) agreement or its Subsidiary; modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any product, service or technology of the Company, other than in the ordinary course of business;
(uy) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vz) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its SubsidiaryCompany; or
(bbaa) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aaz) of this Section 2.10 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any the Related Agreements).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Nuance Communications, Inc.)
No Changes. Since Between December 31, 1999 and the Balance Sheet Datedate of this Agreement, ---------- there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by amendments or changes to the articles of organization or bylaws of the Company or its Subsidiary (except in the ordinary course of business as conducted on that date and consistent with past practicesrequired hereby);
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of the Subsidiary;
(c) capital expenditure or capital commitment by the Company exceeding $10,000 100,000 individually or $50,000 500,000 in the aggregate;
(dc) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 100,000 in any one case, or $10,000 300,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaryotherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities recorded reflected or reserved against in the Current Balance Sheet;
(ed) destruction of, damage to, of or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or its Subsidiary (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 or any attempt to the Company or its Subsidiaryunionize employees;
(gf) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiaryother than as required by GAAP;
(hg) adoption of or change in any material election in respect of TaxesTaxes (as defined below), adoption or change in any material accounting method in respect of Taxes, agreement or settlement of any material claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ih) material revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivableits assets;
(ji) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCommon Stock or Preferred, or any split, combination or reclassification in respect of any shares of Company Common Stock or Preferred, 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 UnitsCommon Stock or Preferred, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Common Stock or Preferred (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) for the issuance of Company Options or other securities of the Company set forth in Section 2.2 of the Company Disclosure Schedule or issuance of shares of Company ----------- Common Stock in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyOptions;
(k) (ij) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their its officers, directors, employees, consultants contract workers or advisors, (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementperson;
(l) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(mk) sale, lease, license (outside of the ordinary course of business) or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or its Subsidiary, including the sale of any accounts receivable of the Company or its Subsidiary, or any creation of any security interest in such material assets or material properties;
(nl) loan by the Company or its Subsidiary to any Person, person or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment entity (other than pursuant to the terms of the Plan in connection with the exercise of any outstanding loan agreement;
(o) Company Options), incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary or guaranteeing of any debt securities of others, except for advances to employees or contract workers for travel and business expenses in the ordinary course of business consistent with past practices;
(pm) waiver or release of any material right or claim of the Company or its SubsidiaryCompany, including any write-off or other compromise of any account receivable of the Company or its Subsidiaryin excess of $50,000;
(qn) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, receipt of written notice of, or to the knowledge of the Company overt threat of of, any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingaffairs;
(ro) notice agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution or similar rights of any claim type or potential claim of ownership, interest scope with respect to any products or right by any Person other than the Company or its Subsidiary technology of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or outside of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, ;
(ip) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bbq) agreement by the Company or its Subsidiary, or any officer or employees employee on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aao) of this Section 2.10 2.8 (other than negotiations with Purchaser and the Members and their representatives regarding the transactions contemplated as required by this Agreement and any Related AgreementsAgreement).. -----------
Appears in 1 contract
Sources: Recapitalization and Exchange Offer Agreement (Internet Capital Group Inc)
No Changes. Since Between September 30, 2003 and the Balance Sheet Datedate of this Agreement, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) material transaction by the Company or any of its Subsidiary 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 certificate of incorporation, bylaws or the other organizational documents of the SubsidiaryCompany or any of its subsidiaries;
(c) (i) capital expenditure or capital commitment by the Company or any of its subsidiaries exceeding $10,000 25,000 individually or $50,000 in the aggregate, or (ii) any other expenditure, commitment or transaction by the Company or any of its subsidiaries exceeding $25,000 individually or $50,000 in the aggregate other than, in the case of clause (ii), in the ordinary course of business consistent with past practices;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 25,000 in any one case, or $10,000 50,000 in the aggregate, of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaryotherwise), other than paymentspayment, discharges discharge or satisfactions satisfaction in the ordinary course of business of liabilities recorded reflected or reserved against in the Current Balance Sheet;
(e) destruction ofchange in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, damage todoubtful accounts or other reserves, or loss of any material assets (whether tangible depreciation or intangible), material business amortization policies or material customer of rates or payment or collection policies or practices) by the Company or its Subsidiary (whether or not covered by insurance)Company;
(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 its Subsidiary;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or its Subsidiary;
(h) adoption of or change in any material election in respect of TaxesTaxes (as defined in Section 2.10(a)), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(ig) revaluation by the Company or its Subsidiary of any of their its or any of its subsidiaries’ assets (whether tangible or intangible), including without limitation writing down or up the value of intangible assets inventory or writing off notes or accounts receivable, settling, discounting or compromising any accounts receivable, or reversing any reserves other than in the ordinary course of business and consistent with past practice;
(jh) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the CompanyOptions;
(k) (i) increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiary to any of their its officers, employeesdirectors, consultants employees or advisorsadvisors (except pursuant to the terms of pre-existing obligations which are disclosed on Section 2.9(i) of the Disclosure Schedule), (ii) or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Personperson (except pursuant to the terms of pre-existing obligations which are disclosed on Section 2.9(i) of the Disclosure Schedule);
(j) termination or extension, or material amendment, waiver or modification of the terms, of any Contract;
(k) commencement by or settlement of any lawsuit or proceeding or other investigation by the Company or any of its subsidiaries other than the declaration and payment routine collection of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreementbills;
(l) agreement, contract, covenant, instrumentsale, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, leasesublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its Subsidiarysubsidiaries, including including, but not limited to, the sale of any accounts receivable of the Company or its SubsidiaryCompany, or any creation of any security interest in such material assets or material properties;
(nm) loan by the Company or its Subsidiary to any Personperson or entity, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary or guaranteeing of any debt securities of others, except for trade payables and advances to employees for travel and business expenses expenses, in each case 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 Subsidiarysubsidiaries, including any write-off off, discount or other compromise of any account receivable of the Company or any of its Subsidiarysubsidiaries;
(qo) commencement agreement or settlement modification to any marketing, distribution, joint venture, strategic alliance, development or similar arrangement or agreement;
(p) request that any vendor or service provider hold or delay any invoices or billing statements, or any failure to purchase or replenish inventory in the ordinary course of business;
(i) sale, license or transfer of any lawsuit Company Intellectual Property or execution of any agreement with respect to the Company Intellectual Property with any person or entity with respect to the Intellectual Property Rights of any person or entity other than in the ordinary course of business, or (ii) purchase or in-license of any Intellectual Property Rights or execution of any agreement with respect to the Intellectual Property Rights of any person or entity other than ordinary course shrink wrap software agreements for internal operations, (iii) agreement with respect to the development of any Intellectual Property Rights with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or its Subsidiary, the commencement, settlement, notice licensees or threat of any lawsuit in pricing or proceeding royalties set or other investigation against charged by persons who have licensed Intellectual Property Rights to the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoingsubsidiaries;
(r) destruction, damage, or loss adversely affecting any material assets (whether tangible or intangible) or material business of the Company or any of its subsidiaries (whether or not covered by insurance);
(s) labor trouble or claim of wrongful discharge or other unlawful labor practice or action with respect to the Company or any of its subsidiaries;
(t) notice from any material customer that such customer intends to cancel or substantially reduce its purchases of goods and services from the Company and its subsidiaries, or any such cancellation or substantial reduction;
(u) notice of any claim or potential claim of ownership, interest or right ownership by any Person person other than the Company or its Subsidiary of the Company Intellectual Property (as defined in Section 2.13(a)) owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Personperson’s Intellectual Property or rights to music or other contentRights (as defined in Section 2.13(a));
(sv) issuancecircumstance, grantchange, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition effect of any character that has had or is reasonably likely to have a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(v) 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 its Subsidiary;; or
(w) acquisition by the Company written or its Subsidiary or oral agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its Subsidiary, or any officer or employees on behalf of the Company or its Subsidiary, to do any of the things described in the preceding clauses (a) through (aav) of this Section 2.10 2.9 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any Related AgreementsAgreement).
Appears in 1 contract
Sources: Merger Agreement (Polycom Inc)
No Changes. Since From and including the Balance Sheet DateDate to and including the date of this Agreement, the Company and its Subsidiaries have conducted their respective businesses in the ordinary course consistent with past practice (other than as otherwise contemplated hereby with respect to the termination of employees and incurring Transaction Expenses), and there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) Material Adverse Effect;
(b) material transaction or commitment by the Company or any of its Subsidiary 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 the any Subsidiary;
(c) capital expenditure or capital commitment exceeding $10,000 individually or $50,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, release, waiver or satisfactionsatisfaction of any claim or right, or Liability in any an amount in excess of $5,000 50,000, in any one case, or $10,000 150,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiary), other than payments, discharges or satisfactions in the ordinary course of business or in connection with the transactions contemplated by this Agreement of liabilities recorded 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 Subsidiary 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 SubsidiarySubsidiaries;
(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 SubsidiarySubsidiaries, except as specifically required by GAAP;
(h) adoption of or change in any material election Tax accounting method or Tax election, settlement or compromise of any Tax claim or assessment, entering into any closing agreement in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement filing of any amended Tax Return, or consent to the waiver or extension of the limitations period for any Tax claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesassessment;
(i) revaluation by the Company or its Subsidiary of any of their assets (whether tangible or intangible), including writing down the value of intangible assets or writing off notes or accounts receivable;
(ji) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock or any Capital Stock of any Subsidiary of the Company, (ii) any split, combination or reclassification in respect of any shares of Company Capital Stock or any shares of Capital Stock of any Subsidiary of the Company, (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 UnitsCapital Stock or any shares of Capital Stock of any Subsidiary of the Company, or (iv) any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock or 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 (iiii) and (iv) in accordance with the agreements evidencing Company Unvested UnitsOptions;
(j) (A) termination or extension, or material amendment, waiver or modification of the terms, of any Material Contract not specifically required by the terms thereof, or (B) breach of or default under any Material Contract or the occurrence of any event or condition which, with the giving of notice or the passage of time or both, would reasonably be expected to constitute such a breach or default;
(k) 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 Lien in such material assets or material properties other than (i) Permitted Liens and (ii) a cash distribution in an amount equal to up to fortynon-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations exclusive licenses of the Company for Products to end-users pursuant to agreements that have been entered into in the period beginning on January 1ordinary course of business consistent with past practice that do not materially differ in substance from the Standard Form Agreements;
(l) loan by the Company or any of its Subsidiaries to any Person, 2006 and ending on forgiveness by the Closing Date; provided that (A) for purposes hereof Company of any loan to any Person, incurring by the net taxable income Company or any of its Subsidiaries of any Indebtedness, guaranteeing by the Company or any of its Subsidiaries of any Indebtedness, issuance or sale of any debt securities of the Company shall or any of its Subsidiaries or guaranteeing of any debt securities of others, except for reasonable advances to current Employees not include any income arising on account exceeding $2,000 for business travel and other business expenses in the ordinary course of business consistent with past practice;
(m) commencement, settlement, written notice or, to the Knowledge of the Merger Company, threat of any lawsuit or proceeding or other investigation against or involving the Company or any of its Subsidiaries or its properties, assets, business or affairs;
(n) written notice of any claim or potential claim of ownership by any Person, other transactions contemplated hereunder; than the Company or any of its Subsidiaries, of Company Intellectual Property or of infringement by the Company or any of its Subsidiaries of any other Person’s Intellectual Property Rights;
(Bo) income and expenses issuance or sale, or Contract or undertaking to issue or sell, by the Company or any of its Subsidiaries of (i) any shares of Company Capital Stock or any shares of Capital Stock of any Subsidiary of the Company for or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as shares of Capital Stock of any Subsidiary of the Company, with the approval of Purchaseror (ii) any securities, may select; and (C) Purchaser shall have reviewed and approved warrants, options or rights to purchase any of the calculation foregoing;
(p) (i) sale or license of such estimated net taxable income any Company Intellectual Property or Company Products or 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 (other than non-exclusive licenses of the Company prior 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), (ii) purchase or license of any such distribution Intellectual Property Rights or Technology or execution of any agreement with respect to the Intellectual Property Rights or Technology of any Person (other than shrink-wrap, click-through or similar generally available commercial binary code end user licenses), (iii) agreement with respect to the development of any Intellectual Property Rights or Technology with a third party, (iv) change in pricing or royalties set or charged by the CompanyCompany or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property Rights or Technology to the Company 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;
(kq) (i) increase in or decrease in or other change to the salary 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 its Subsidiary to in respect of, any of their officers, employees, consultants or advisorsits Employees, (ii) the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equityequity or otherwise) by the Company or its Subsidiary of a notice payment, severance payment, termination leave approval or payment, bonus change of control payment, any other termination or employment-related bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any such Personof its, other than the declaration and payment of up Employees, (iii) promise to an aggregate of $20,850 of bonuses pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandumany Employee, or (iiiiv) adoption adoption, termination or amendment of any Company Employee Plan, collective bargaining agreement, or execution 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 AgreementAgreement (other than execution of the Company’s applicable standard offer letter, each of the forms of which have been Made Available to Parent);
(lt) agreementany 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) the hiring of any individual or termination of any Employee, contract, covenant, instrument, lease, license or commitment to which including any officer of the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible Subsidiaries, the promotion, demotion or intangible) are bound other change to employment status or any termination, extension, amendment or modification of the terms title of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their assets is bound, other than pursuant to the Company’s Standard Form of Agency Agreement;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties officer of the Company or any of its SubsidiarySubsidiaries, including or the sale resignation or removal of any accounts receivable member of the Board of Directors of the Company or any of its Subsidiary, or any creation of any security interest in such assets or propertiesSubsidiaries;
(n) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or its Subsidiary of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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;
(pv) waiver or release of any material right or material claim of the Company or any of its Subsidiary, including any write-off or other compromise of any account receivable of the Company or its SubsidiarySubsidiaries;
(q) commencement or settlement of any lawsuit by the Company or its Subsidiary, the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its Subsidiary or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other content;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or its Subsidiary, of any Company Units or securities convertible into, or exercisable or exchangeable for, Company Units, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing;
(t) other than in the ordinary course of business, (i) sale, lease, license or transfer of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content or execution, modification or amendment of any agreement with respect to the music or other content of any Person, (iii) agreement or modification or amendment of an existing agreement with any Channel Outlet, or (iv) change in pricing set or charged by the Company or its Subsidiary for the license, purchase or use of the Content or in pricing or royalties set or charged by Persons who have conveyed Content to the Company or its Subsidiary; (u) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vw) 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 its Subsidiary;Company; or
(wx) acquisition agreement or commitment by the Company or any of its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its SubsidiarySubsidiaries, or any officer or employees Employee on behalf of the Company or any of its SubsidiarySubsidiaries, to do any of the things described in the preceding clauses (a) through (aaw) of this Section 2.10 4.9 (other than negotiations with Purchaser Parent and the Members and their representatives its Representatives regarding the transactions contemplated by this Agreement and any Related Agreements).
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
No Changes. Since December 31, 2015, and except as disclosed in the Balance Sheet DateDisclosure Schedule, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary except in the ordinary course of business business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of the SubsidiaryCompany other than as contemplated by this Agreement;
(c) capital expenditure or capital commitment by the Company exceeding $10,000 individually or $50,000 25,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its SubsidiaryCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded or reserved against in the Current Balance Sheetbusiness;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or its Subsidiary (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 its SubsidiaryCompany;
(g) adoption or other than in the ordinary course of business, change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP or its Subsidiaryby Law;
(h) adoption of or change in any material Tax election or, other than in the ordinary course of business, any Tax accounting method, entering into any closing agreement with respect of to Taxes, adoption settlement or change in any accounting method in respect of Taxes, agreement or settlement compromise of any material Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect or filing of Taxesany amended material Tax Return;
(i) revaluation by the Company or its Subsidiary of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets inventory or writing off notes or accounts receivableAccounts Receivable;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except (i) in accordance with the agreements evidencing Company Unvested Units, and (ii) a cash distribution in an amount equal to up to forty-five percent (45%) of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that (A) for purposes hereof the net taxable income of the Company shall not include any income arising on account of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(k) (i) increase hiring or termination of any employee or individual consultant of the Company, other than with respect to non-officer employees and individual consultants in the ordinary course of business, (ii) promotion, demotion or other change to the employment status or title of any officer of the Company or (iii) resignation or removal of any director of the Company;
(l) (i) increase in the salary or other compensation (including equity based compensation whether payable in cash, securities or otherwise) payable or to become payable by the Company or its Subsidiary to any of their its officers, directors, employees, individual consultants or advisors, other than with respect to non-officer employees and individual consultants in the ordinary course of business or (ii) the declaration, adoption, agreement, contract, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or extraordinary compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;
(lm) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their its assets is are bound, other than pursuant to agreements, contracts, covenants, instruments, leases, licenses or commitments entered into in the Company’s Standard Form ordinary course of Agency Agreementbusiness, consistent with past practice;
(mn) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiaryoutside of the ordinary course of business, consistent with past practices, including the sale of any accounts receivable of the Company or its SubsidiaryAccounts Receivable, or any creation of any security interest in such assets or properties;
(no) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment Person, except for advances to employees for travel and business expenses in the terms ordinary course of any outstanding loan agreementbusiness, consistent with past practices;
(op) incurring incurrence by the Company or its Subsidiary of any indebtednessIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtednessIndebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 right or claim of the Company or its SubsidiaryCompany, including any write-off or other compromise of any account receivable of the Company or its SubsidiaryAccounts Receivable;
(qr) commencement or settlement of any lawsuit by the Company or its SubsidiaryCompany, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or Company, its Subsidiary affairs, or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(rs) claims or matters raised by any individual, Governmental Authority, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company;
(t) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, (as defined in Section 2.14 hereof) or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other contentRights (as defined in Section 2.14 hereof);
(su) issuance, grant, delivery, sale issuance or purchasesale, or proposal, contract or agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or its Subsidiary, of any shares of Company Units Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCommon Stock, Company Preferred Stock or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of options issued under the Plan;
(ti) other than except standard end user licenses and software-as-a-service agreements entered into in the ordinary course of business, (i) consistent with past practices, sale, lease, license or transfer to any Person of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content Company Intellectual Property or execution, modification or amendment of any agreement with respect to the music Company Intellectual Property with any Person or other content with respect to the Intellectual Property Rights of any Person, (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, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Channel OutletTechnology or Intellectual Property Rights with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons who have conveyed Content licensed Technology or Intellectual Property Rights to the Company;
(w) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company or its Subsidiary; Product;
(ux) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vy) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;Company; or
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its SubsidiaryCompany, or any officer or employees on behalf of the Company or its SubsidiaryCompany, to do any of the things described in the preceding clauses (a) through (aay) of this Section 2.10 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any the Related Agreements).
Appears in 1 contract
No Changes. Since December 31, 2015, and except as disclosed in the Balance Sheet DateDisclosure Schedule, there has not been, occurred or arisen, other than in connection with this Agreement and the Merger, arisen any:
(a) transaction by the Company or its Subsidiary except in the ordinary course of business business, consistent with past practices, as conducted on that date and consistent with past practices;
(b) modifications, amendments or changes to the Charter Documents or the organizational documents of the SubsidiaryCompany other than as contemplated by this Agreement;
(c) capital expenditure or capital commitment by the Company exceeding $10,000 individually or $50,000 25,000 in the aggregate;
(d) other than the payment of Third Party Expenses, payment, discharge, waiver discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, satisfaction of any claim, liability, right liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its SubsidiaryCompany), other than payments, discharges or satisfactions in the ordinary course of business of liabilities recorded or reserved against in the Current Balance Sheetbusiness;
(e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company or its Subsidiary (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 its SubsidiaryCompany;
(g) adoption or other than in the ordinary course of business, change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP or its Subsidiaryby Law;
(h) adoption of or change in any material Tax election or, other than in the ordinary course of business, any Tax accounting method, entering into any closing agreement with respect of to Taxes, adoption settlement or change in any accounting method in respect of Taxes, agreement or settlement compromise of any material Tax claim or assessment in respect of Taxesassessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment in respect or filing of Taxesany amended material Tax Return;
(i) revaluation by the Company or its Subsidiary of any of their its assets (whether tangible or intangible), including writing down the value of intangible assets inventory or writing off notes or accounts receivableAccounts Receivable;
(j) declaration, setting aside or payment of any a dividend or other distribution (whether in cash cash, stock or property) in respect of any Company UnitsCapital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company UnitsCapital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Units Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except ;
(i) hiring or termination of any employee or individual consultant of the Company, other than with respect to non-officer employees and individual consultants in accordance with the agreements evidencing Company Unvested Unitsordinary course of business, and (ii) a cash distribution in an amount equal promotion, demotion or other change to up to forty-five percent (45%) the employment status or title of the estimated net taxable income (within the meaning of Section 703 of the Code and any comparable provision of California law) from operations officer of the Company for the period beginning on January 1, 2006 and ending on the Closing Date; provided that or (Aiii) for purposes hereof the net taxable income resignation or removal of the Company shall not include any income arising on account director of the Merger or the other transactions contemplated hereunder; (B) income and expenses of the Company for any period beginning prior to the Closing Date and ending after the Closing Date shall be allocated using such reasonable method, consistently applied, as the Company, with the approval of Purchaser, may select; and (C) Purchaser shall have reviewed and approved of the calculation of such estimated net taxable income of the Company prior to any such distribution by the Company;
(kl) (i) 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 its Subsidiary to any of their its officers, directors, employees, individual consultants or advisors, other than with respect to non-officer employees and individual consultants in the ordinary course of business or (ii) the declaration, adoption, agreement, contract, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiary of a severance payment, termination payment, bonus or other additional salary or extraordinary compensation to any such Person, other than the declaration and payment of up to an aggregate of $20,850 of bonuses payable to the Company’s employees employed as of May 8, 2006 pursuant to the Company’s 2006 Bonus Policy memorandum, or (iii) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement;
(lm) agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiary is a party or by which it or any of their its assets is are bound, other than pursuant to agreements, contracts, covenants, instruments, leases, licenses or commitments entered into in the Company’s Standard Form ordinary course of Agency Agreementbusiness, consistent with past practice;
(mn) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or its Subsidiaryoutside of the ordinary course of business, consistent with past practices, including the sale of any accounts receivable of the Company or its SubsidiaryAccounts Receivable, or any creation of any security interest in such assets or properties;
(no) loan by the Company or its Subsidiary to any Person, or purchase by the Company or its Subsidiary of any debt securities of any Person or amendment Person, except for advances to employees for travel and business expenses in the terms ordinary course of any outstanding loan agreementbusiness, consistent with past practices;
(op) incurring incurrence by the Company or its Subsidiary of any indebtednessIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiary of any additional indebtednessIndebtedness, issuance or sale of any debt securities of the Company or its Subsidiary 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 right or claim of the Company or its SubsidiaryCompany, including any write-off or other compromise of any account receivable of the Company or its SubsidiaryAccounts Receivable;
(qr) commencement or settlement of any lawsuit by the Company or its SubsidiaryCompany, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or Company, its Subsidiary affairs, or relating to any of its businesses, properties or assets, or any reasonable basis for any of the foregoing;
(rs) claims or matters raised by any individual, Governmental Authority, or workers’ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company;
(t) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or its Subsidiary of the Company Intellectual Property owned by or developed or created by the Company or its Subsidiary or of the Content, (as defined in Section 2.14 hereof) or of infringement by the Company or its Subsidiary of any other Person’s Intellectual Property or rights to music or other contentRights (as defined in Section 2.14 hereof);
(su) issuance, grant, delivery, sale issuance or purchasesale, or proposal, contract or agreement to issue, grant, deliver, sell issue or purchasesell, by the Company or its Subsidiary, of any shares of Company Units Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company UnitsCommon Stock, Company Preferred Stock or any subscriptionssecurities, warrants, options, options or rights or securities to acquire purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of options issued under the Plan;
(ti) other than except standard end user licenses and software-as-a-service agreements entered into in the ordinary course of business, (i) consistent with past practices, sale, lease, license or transfer to any Person of any Content or execution, modification or amendment of any agreement with respect to Content with any Person, or (ii) purchase or license of any music or other content Company Intellectual Property or execution, modification or amendment of any agreement with respect to the music Company Intellectual Property with any Person or other content with respect to the Intellectual Property Rights of any Person, (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, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Channel OutletTechnology or Intellectual Property Rights with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or its Subsidiary for the license, purchase or use of the Content licensees or in pricing or royalties set or charged by Persons who have conveyed Content licensed Technology or Intellectual Property Rights to the Company;
(w) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company or its Subsidiary; Product;
(ux) event or condition of any character that has had a Company Material Adverse Effect, other than an event generally affecting Purchaser and other participants in the digital distribution market;
(vy) 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 its Subsidiary;
(w) acquisition by the Company or its Subsidiary or agreement by the Company or its 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 its Subsidiary;
(x) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or its Subsidiary;
(y) any action to accelerate the vesting schedule of any Company Unvested Units;Company; or
(z) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(aa) cancellation, amendment or renewal of any insurance policy of the Company or its Subsidiary; or
(bb) agreement by the Company or its SubsidiaryCompany, or any officer or employees on behalf of the Company or its SubsidiaryCompany, to do any of the things described in the preceding clauses (a) through (aay) of this Section 2.10 (other than negotiations with Purchaser Parent and the Members and their its representatives regarding the transactions contemplated by this Agreement and any the Related Agreements).
Appears in 1 contract
Sources: Merger Agreement