Company Conduct. Except as set forth in Schedule 4.1, during the --------------- period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in materially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due. The Company agrees, to the extent consistent with the business of the Company, to use all reasonable efforts consistent with past practice and policies to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with the Company, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any event or occurrence or emergency not in the ordinary course of its business, and any material event involving or adversely affecting or likely to adversely affect the Company or its business, business prospects, assets, operation or condition (financial or other). Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of Parent: (i) Enter into any commitment, activity or transaction not in the ordinary course of business; (ii) Transfer to any person or entity any rights to any Technology or IP Rights (other than pursuant to ordinary course end-user licenses); (iii) Enter into or amend any material agreements pursuant to which any other party is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of the Company, except in the ordinary course of business; (iv) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the agreements set forth or described in the Company Schedules; (v) Commence any litigation; (vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor); (vii) Except for the issuance of shares of Company Capital Stock upon exercise or conversion of presently outstanding Company Options and Series A Preferred, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than from option grants for new hires and promotions expressly contemplated by the Company's 1999 Operating Plan; (viii) Cause or permit any amendments to its Certificate of Incorporation or Bylaws; (ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Company; (x) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice; (xi) Incur any indebtedness or other liabilities or guarantee any such indebtedness or other liabilities of others or issue or sell any debt securities of the Company or guarantee any debt securities of others, except in the ordinary course of business; (xii) Grant any severance or termination pay to any director, officer employee or consultant, except payments made pursuant to standard written agreements outstanding on the date hereof (which agreements are disclosed on Schedule 4.1(a)(xii)); (xiii) Adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees, except as expressly set forth in the Company's 1999 Operating Plan; (xiv) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice; (xv) Take any action, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that could jeopardize the tax-free reorganization hereunder; (xvi) Pay, discharge or satisfy, in an amount in excess of $10,000, in any one case, or $25,000, in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements or incurred in the ordinary course of business since February 28, 1999; (xvii) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; (xviii) Enter into any strategic alliance, joint development or joint marketing arrangement or agreement; (xix) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith; (xx) Waive or commit to waive any rights with a value in excess of $25,000, in any one case, or $50,000, in the aggregate; (xxi) Cancel, materially amend or renew any insurance policy other than in the ordinary course of business; (xxii) Alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company or business entity in which the Company directly or indirectly holds any interest on the date hereof; or (xxiii) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i) through (xxii) above, Section 2.8 or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Merger Agreement (Avt Corp)
Company Conduct. Except as set forth in Schedule 4.1, during During the --------------- period from the date of this --------------- Agreement and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company agrees (except to the extent that unless Parent shall otherwise give its prior consent in writingwriting which consent will not be unreasonably withheld) to carry on its business in the usual, regular and ordinary course in materially the same manner as heretofore conductedconsistent with past practice, to pay its debts Liabilities and Taxes when dueconsistent with the Company's past practices, to pay or perform other obligations when due. The Company agreesdue consistent with the Company's past practices, subject to any good faith disputes over such Liabilities, Taxes and other obligations and, to the extent consistent with the business of the Companysuch business, to use all reasonable efforts consistent with past practice and institute all policies to preserve intact the Company's its present business organization, keep available the services of the Company's its present officers and key employees and preserve the Company's its relationships with customers, suppliers, distributors, licensors, licensees, licensees and others other Persons having business dealings with the Companyit, all with the goal express purpose and intent of preserving unimpaired the Company's its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any event or occurrence or emergency not in the ordinary course of its business, and any material event involving or adversely affecting or likely to adversely affect the Company or its business, business prospects, assets, operation or condition (financial or other). Except as expressly contemplated by this AgreementAgreement or as set forth in the Disclosure Schedule, the Company shall not, without the prior written consent of Parent, which consent will not be unreasonably withheld:
(i) Enter into any commitmentContract, activity commitment or transaction not or incur any Liabilities outside of the ordinary course of business consistent with past practice.
(ii) Transfer (by way of a License or otherwise) to any Person rights to any Company Intellectual Property other than the Company's customers, distributors or other licensees in the ordinary course of business;
(ii) Transfer to any person or entity any rights to any Technology or IP Rights (other than pursuant to ordinary course end-user licenses)business consistent with past practice;
(iii) Enter into or amend any material agreements Contract pursuant to which any other party Person is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of the Company or Company Intellectual Property other than as contemplated by the Company's Contracts, except Licenses or agreements disclosed in the Disclosure Schedule or otherwise in the ordinary course of businessbusiness consistent with past practice;
(iv) Amend Materially amend or otherwise modify (or agree to do so), except in the ordinary course of businessbusiness consistent with past practice, or violate the terms of, any of the agreements Contracts set forth or described in the Company SchedulesDisclosure Schedule;
(v) Commence any litigationAction or Proceeding;
(vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any capital stock of its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1the Company or Equity Equivalents, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or optionsOptions exercisable, warrants convertible or other rights exercisable exchangeable therefor);
(vii) Except for the issuance of shares of Company Capital Stock upon exercise or conversion of presently outstanding Company Options and Series A PreferredCompany Warrants listed in Section 2.3 of the Disclosure Schedule, or the issuance of -------------------------------------- options available for grant under the Company's existing stock option plan to employees who are not officers of the Company, issue, grant, deliver or deliver, sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock Company Capital Stock, Equity Equivalents or Options to purchase any other securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than from option grants for new hires and promotions expressly contemplated by the Company's 1999 Operating Plan;
(viii) Cause or permit any amendments to its Certificate certificate of Incorporation incorporation or Bylawsby-laws;
(ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing Enter into any assets or equity securities of, or by Contract in connection with any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Companytransaction involving a Business Combination;
(x) Sell, lease, license or otherwise dispose (or agree to do so) of any of its properties or assetsAssets and Properties, except in the ordinary course of business and consistent with past practice;
(xi) Incur any indebtedness or other liabilities Indebtedness or guarantee any such indebtedness or Indebtedness in an aggregate amount exceeding $15,000, other liabilities than pursuant to the Secured Promissory Note, dated June 3, 1998 in favor of others Parent, or issue or sell any debt securities of the Company or guarantee any debt securities of others, except in the ordinary course of business;
(xii) Grant any severance or termination pay to any director, officer employee or consultant, except payments made pursuant to standard written agreements outstanding on the date hereof (hereof, the terms of which agreements are disclosed on Schedule 4.1(a)(xii))in the Disclosure Schedule;
(xiii) Adopt or amend any employee benefit planPlan or Contract respecting employment, program, policy or arrangement, or enter into extend any employment contractoffer, pay or agree to pay any special bonus or special remuneration to any director, officer, employee or consultant, or increase the salaries or wage rates of its employeesdirectors, except as expressly set forth in the Company's 1999 Operating Planofficers, employees or consultants;
(xiv) Revalue any of its assetsAssets and Properties, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice;
(xv) Take any action, including the acceleration of vesting of any optionsCompany Options or Company Warrants, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling Pooling of interests Interests or any other action that could jeopardize the tax-free reorganization hereunder, except in accordance with any Contract or other agreement set forth on the Disclosure Schedule;
(xvi) Pay, discharge or satisfy, in an amount in excess of $10,00015,000, in any one case, or $25,000, 30,000 in the aggregate, any claim, liability Liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities Liabilities reflected or reserved against in the Company Financial Statements or incurred in the ordinary course of business since February 28, 1999Statements;
(xvii) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of TaxesTaxes with any Taxing Authority or otherwise;
(xviii) Enter into any strategic alliance, joint development or joint marketing arrangement or agreementContract other than joint marketing efforts with its customers;
(xix) Fail to pay or otherwise satisfy its monetary obligations as they become dueLiabilities consistent with the Company's past practices, except such as are being contested in good faith;
(xx) Waive or commit to waive any rights with a value in excess of $25,00015,000, in any one case, or $50,00030,000, in the aggregate;
(xxi) Cancel, materially amend or renew any insurance policy other than in the ordinary course of businessbusiness consistent with past practice;
(xxii) Alter, or enter into any Contract or other commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(xxiii) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i) through (xxii) above, Section 2.8 or any other action that would prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Level One Communications Inc /Ca/)
Company Conduct. Except as set forth in Schedule 4.1, during During the --------------- period from the date of this --------------- Agreement and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company agrees (except to the extent that unless Parent shall otherwise give its prior consent in writingwriting which consent will not be unreasonably withheld or delayed) to carry on its business in the usual, regular and ordinary course in materially the same manner as heretofore conductedconsistent with past practice, to pay its debts Liabilities and Taxes when dueTaxes, to pay or perform other obligations when due. The Company agrees, subject to any good faith disputes over such Liabilities, Taxes and other obligations and, to the extent consistent with the business of the Companysuch business, to use all commercially reasonable efforts consistent with past practice and institute all policies to preserve intact the Company's its present business organization, keep available the services of the Company's its present officers and key employees and preserve the Company's its relationships with customers, suppliers, distributors, licensors, licensees, licensees and others other Persons having business dealings with the Companyit, all with the goal express purpose and intent of preserving unimpaired the Company's its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any event or occurrence or emergency not in the ordinary course of its business, and any material event involving or adversely affecting or likely to adversely affect the Company or its business, business prospects, assets, operation or condition (financial or other). Except as expressly contemplated by this AgreementAgreement or as set forth in the Disclosure Schedule, the Company shall not, without the prior written consent of Parent, which consent will not be unreasonably withheld or delayed:
(i) Enter into any commitmentContract, activity commitment or transaction not or incur any Liabilities outside of the ordinary course of business consistent with past practice.
(ii) Transfer (by way of a License or otherwise) to any Person rights to any Company Intellectual Property other than the Company's customers, distributors or other licensees in the ordinary course of business;
(ii) Transfer to any person or entity any rights to any Technology or IP Rights (other than pursuant to ordinary course end-user licenses)business consistent with past practice;
(iii) Enter into or amend any material agreements Contract pursuant to which any other party Person is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of the Company or Company Intellectual Property other than as contemplated by the Company, except 's Contracts or Licenses disclosed in the Disclosure Schedule or otherwise in the ordinary course of businessbusiness consistent with past practice;
(iv) Amend Materially amend or otherwise modify (or agree to do so), except in the ordinary course of businessbusiness consistent with past practice, or violate the terms of, any of the agreements Contracts set forth or described in the Company SchedulesDisclosure Schedule;
(v) Commence any litigationAction or Proceeding;
(vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock of its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1the Company or Equity Equivalents, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the CompanyCompany Capital Stock, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (Company Capital Stock or options, warrants or other rights exercisable therefor)Company Options except for repurchases of Company Capital Stock from employees upon the termination of their employment pursuant to written agreements existing on the date hereof and disclosed in the Disclosure Schedule;
(vii) Except for the issuance of shares of Company Capital Stock upon exercise or conversion of presently outstanding Company Options and Series A Preferredlisted in Section 2.3 of the Disclosure Schedule, or the issuance of options available for -------------------------------------- grant under the Company's existing stock option plan to employees who are not officers of the Company, issue, grant, deliver or deliver, sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock Company Capital Stock, Equity Equivalents or Options to purchase any other securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than from option grants for new hires and promotions expressly contemplated by the Company's 1999 Operating Plan;
(viii) Cause or permit any amendments to its Certificate restated certificate of Incorporation incorporation or Bylawsby-laws;
(ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing Enter into any assets or equity securities of, or by Contract in connection with any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Companytransaction involving a Business Combination;
(x) Sell, lease, license or otherwise dispose (or agree to do so) of any of its properties or assetsAssets and Properties, except in the ordinary course of business and consistent with past practice;
(xi) Incur any indebtedness or other liabilities Indebtedness or guarantee any such indebtedness or other liabilities of others Indebtedness in an aggregate amount exceeding $50,000, or issue or sell any debt securities of the Company or guarantee any debt securities of others, except in the ordinary course of business;
(xii) Grant any severance or termination pay to any director, officer employee or consultant, except payments made pursuant to standard written agreements outstanding on the date hereof (hereof, the terms of which agreements are disclosed on Schedule 4.1(a)(xii))in the Disclosure Schedule;
(xiii) Adopt or amend any employee benefit planPlan or Contract respecting employment, program, policy or arrangement, or enter into extend any employment contractoffer, pay or agree to pay any special bonus or special remuneration to any director, officer, employee or consultant, or increase the salaries or wage rates of its employeesdirectors, except as expressly set forth in the Company's 1999 Operating Planofficers, employees or consultants;
(xiv) Revalue any of its assetsAssets and Properties, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice;
(xv) Take any action, including the acceleration of vesting of any optionsCompany Options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company Capital Stock which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling Pooling of interests Interests or any other action that could jeopardize the tax-free reorganization hereunder;
(xvi) Pay, discharge or satisfy, in an amount in excess of $10,00050,000, in any one case, or $25,000, 100,000 in the aggregate, any claim, liability Liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities Liabilities that are either (i) reflected or reserved against in the Company Financial Statements or (ii) were incurred in the ordinary course of business since February 28subsequent to September 30, 19991998;
(xvii) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of TaxesTaxes with any Taxing Authority or otherwise;
(xviii) Enter into any strategic alliance, joint development or joint marketing arrangement or agreementContract;
(xix) Fail to pay or otherwise satisfy its monetary obligations as they become dueLiabilities consistent with the Company's past practices, except such as are being contested in good faith;
(xx) Waive or commit to waive any rights with a value in excess of $25,000, in any one case, or $50,000, in the aggregate;
(xxi) Cancel, materially amend or renew any insurance policy other than in the ordinary course of businessbusiness consistent with past practice;
(xxii) Alter, or enter into any Contract or other commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(xxiii) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i) through (xxii) above, Section 2.8 or any other action that would prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Level One Communications Inc /Ca/)
Company Conduct. Except as set forth in Schedule 4.1, during During the --------------- period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Effective TimeClosing, each Beneficial Holder shall cause the Company, and the Company agrees on its behalf and on behalf of each of its subsidiaries (except to the extent that Parent shall otherwise consent in writing) ), to carry on the business of the Company and its business subsidiaries in the usual, regular and ordinary course in materially substantially the same manner as heretofore conducted, to pay the debts of the Company and its debts subsidiaries in substantially the same manner as heretofore conducted and Taxes when due, to pay or perform other obligations when due. The Company agrees, and, to the extent consistent with the business of the Companysuch business, to use all reasonable efforts consistent with past practice and policies to preserve intact the Company's present business organizationorganization of the Company and its subsidiaries, keep available the services of the Company's present officers and key employees of the Company and its subsidiaries and preserve the Company's and subsidiaries' relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with the Companythem, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses of the Company and its subsidiaries at and after the Effective TimeClosing. The Each Beneficial Holder shall cause the Company, and the Company shall agrees on its behalf and on behalf of each of its subsidiaries, to promptly notify Parent of any event or occurrence or emergency not in the ordinary course of the business of the Company or any of its businesssubsidiaries, and any material event involving or adversely affecting the Company, its subsidiaries or likely to adversely affect the Company or its business, business prospects, assets, operation or condition (financial or other)their respective businesses. Except as expressly contemplated by this Agreement, each Beneficial Holder shall cause the Company, and the Company shall notagrees on its behalf and on behalf of each of its subsidiaries, not to take any of the following actions without the prior written consent of Parent, such consent not to be unreasonably withheld or delayed:
(i) Enter into any commitment, activity or transaction not in the ordinary course of business;
(ii) Transfer to any person or entity any rights to any Technology or IP Rights (Company Intellectual Property, other than pursuant to ordinary course end-user licenses)Standard License Agreements;
(iii) Enter into or amend any material agreements pursuant to which any other party is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of the Company, except in the ordinary course of businessCompany or its subsidiaries;
(iv) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the agreements set forth or described in the Company Schedules;
(v) Commence any litigation;
(vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of the shares in its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1share capital, or split, combine or reclassify any of the shares in its share capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of in the share capital stock of the CompanyCompany or its subsidiaries, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares in the share capital of the Company or its capital stock subsidiaries (or options, warrants or other rights exercisable therefor);
(vii) Except for the issuance of shares of Company Capital Stock Common Shares upon exercise or conversion of presently outstanding Company Options and Series A PreferredConvertible Securities or as contemplated herein, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than from option grants for new hires and promotions expressly contemplated by the Company's 1999 Operating Plan;
(viii) Cause or permit to be made any amendments to its Certificate articles of Incorporation incorporation or Bylawsbylaws;
(ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the CompanyCompany or its subsidiaries;
(x) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice;
(xi) Incur any indebtedness or other liabilities for borrowed money or guarantee any such indebtedness or other liabilities of others or issue or sell any debt securities of the Company or its subsidiaries or guarantee any debt securities of others, except in the ordinary course of businessothers other than fluctuations under existing loan facilities;
(xii) Grant any severance or termination pay to any director, officer employee or consultant, except payments made pursuant to standard written existing agreements outstanding on the date hereof (which agreements are disclosed on set forth in Schedule 4.1(a)(xii))2.12(a) or as required by applicable laws;
(xiii) Adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, extend any employment offer, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees, except as expressly set forth in the Company's 1999 Operating PlanSchedule 5.1(a)(xiii);
(xiv) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable receivable, other than in the ordinary course of business and consistent with past practice;
(xv) Take any actionExcluding payroll obligations performed in the ordinary course, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that could jeopardize the tax-free reorganization hereunder;
(xvi) Paypay, discharge or satisfy, in an amount in excess of $10,000, in any one case, or $25,000, in the aggregate50,000, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements Financials or incurred in the ordinary course of business consistent with past practice since February 28, 19991999 and prior to the date hereof;
(xviixvi) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(xviiixvii) Enter into any strategic alliance, joint development or joint marketing arrangement or agreement;
(xixxviii) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith;
(xxxix) Waive or commit to waive any rights with a value in excess of $25,000, in any one case, or $50,000, in the aggregate;
(xxixx) Cancel, materially amend or renew any insurance policy other than in the ordinary course of business;
(xxiixxi) Alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company partnership or business entity in which the Company or any of its subsidiaries directly or indirectly holds any interest on the date hereof; or
(xxiiixxii) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i) through (xxiixxi) above, Section 2.8 or any other action that would prevent the Company or any its subsidiaries from performing or cause the Company or any of its subsidiaries not to perform its covenants hereunder.
Appears in 1 contract
Company Conduct. Except as set forth in Schedule 4.1, during During the --------------- period from the date of this Agreement --------------- and continuing until the earlier of the termination of this Agreement and the Effective TimeClosing, the Founders agree to cause the Company agrees (except to the extent that Parent Buyer shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in materially substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due. The Company agrees, and, to the extent consistent with the business of the Companysuch business, to use all reasonable efforts consistent with past practice and policies to preserve intact the Company's its present business organization, keep available the services of the Company's its present officers and key employees and preserve the Company's their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with the Companyit, all with the goal of preserving unimpaired the Company's its goodwill and ongoing businesses at the Effective TimeClosing. The Company Founders shall promptly notify Parent Buyer of any event or occurrence or emergency not in the ordinary course of its business, and any material event involving or adversely affecting or likely to adversely affect the Company or its business, business prospects, assets, operation or condition (financial or other). Except as expressly contemplated by this Agreement, the Company Founders shall notnot permit the Company, without the prior written consent of ParentBuyer:
(i) Enter into any commitment, activity or transaction not in the ordinary course of business;
(ii) Transfer to any person or entity any rights to any Technology or IP Rights (other than pursuant to ordinary course end-user licenses)Company Intellectual Property Rights;
(iii) Enter into or amend any material agreements pursuant to which any other party is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of the Company, except in the ordinary course of business;
(iv) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the agreements set forth or described in the Company Schedules;
(v) Commence any litigation;
(vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor);
(vii) Except for the issuance of shares of Company Capital Stock upon exercise or conversion of presently outstanding Company Options and Series A Preferredor Preferred Stock, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than from option grants for new hires and promotions expressly contemplated by the Company's 1999 Operating Plan;
(viii) Cause or permit to be made any amendments to its Certificate of Incorporation or Bylaws;
(ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Company;
(x) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice;
(xi) Incur any indebtedness or other liabilities for borrowed money or guarantee any such indebtedness or other liabilities of others or issue or sell any debt securities of the Company or guarantee any debt securities of others, except including, without limitation, pursuant to that certain Revolving Credit and Security Agreement described in the ordinary course of businessSection 5.17 hereof;
(xii) Grant any severance or termination pay to any director, officer employee or consultant, except payments made pursuant to standard written agreements outstanding on the date hereof (which agreements are disclosed on Schedule 4.1(a)(xii));
(xiii) Adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, extend any employment offer, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees, except as expressly set forth in the Company's 1999 Operating Plan;
(xiv) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice;
(xv) Take any action, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action Company, that could jeopardize the tax-free reorganization hereunder;
(xvi) Pay, discharge or satisfy, in an amount in excess of $10,0005,000, in any one case, or $25,00010,000, in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements or incurred in the ordinary course of business since February 28November 30, 19991996;
(xvii) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(xviii) Enter into any strategic alliance, joint development or joint marketing arrangement or agreement;
(xix) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith;
(xx) Waive or commit to waive any rights with a value in excess of $25,0005,000, in any one case, or $50,00010,000, in the aggregate;
(xxi) Cancel, materially amend or renew any insurance policy other than in the ordinary course of business;
(xxii) Alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(xxiii) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i) through (xxii) above, Section 2.8 or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Company Conduct. Except For purposes of this Article IV, the ordinary course of business shall be deemed to include a course of business consistent with the Business Plan of the Company attached hereto as set forth in Schedule 4.1, during EXHIBIT F (the --------------- "BUSINESS PLAN"). During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Effective TimeClosing, each Management Seller shall, and each Seller shall make commercially reasonable efforts to cause the Company and the Company agrees (except to the extent that Parent shall otherwise consent in writing) ), to carry on its business in the usual, regular and ordinary course in materially substantially the same manner as heretofore conducted, to pay its debts in substantially the same manner as heretofore conducted and Taxes when due, to pay or perform other obligations when due. The Company agrees, and, to the extent consistent with the business of the Companysuch business, to use all reasonable efforts consistent with past practice and policies to preserve intact the Company's its present business organization, keep available the services of the Company's its present officers and key employees and preserve the Company's its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with the Companyit, all with the goal of preserving unimpaired the Company's its goodwill and ongoing businesses at and after the Effective TimeClosing. The Each Management Seller shall, and each Seller shall make commercially reasonable efforts to cause the Company, and the Company shall agrees, to promptly notify Parent of any event or occurrence or emergency not in the ordinary course of its business, and any material event involving or adversely affecting or likely to adversely affect the Company or its business, business prospects, assets, operation or condition (financial or other). Except as expressly contemplated by this Agreement, each Management Seller shall, and each Seller shall make commercially reasonable efforts to cause the Company, and the Company shall notagrees, not to take any of the following actions without the prior written consent of Parent, such consent not to be unreasonably withheld or delayed:
(i) Enter into any commitment, activity or transaction not in the ordinary course of business;
(ii) Transfer to any person or entity any rights to any Technology or IP Rights (Company Intellectual Property, other than pursuant to ordinary course end-user licenses)Standard License Agreements;
(iii) Enter into or amend any material agreements pursuant to which any other party is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of the Company, except in the ordinary course of business;
(iv) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the agreements set forth or described in the Company Schedules;
(v) Commence any litigation;
(vi) DeclareExcept for the capital dividend disclosed in the Balance Sheet, declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of the shares in its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1share capital, or split, combine or reclassify any of the shares in its share capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of in the share capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares in the share capital of its capital stock the Company (or options, warrants or other rights exercisable therefor);
(vii) Except for the issuance of shares of Company Capital Stock upon exercise or conversion of presently outstanding Company Options and Series A Preferred, issueIssue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than from option grants for new hires and promotions expressly contemplated by the Company's 1999 Operating Plan;
(viii) Cause or permit to be made any amendments to its Certificate articles of Incorporation incorporation or Bylawsbylaws;
(ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Company;
(x) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice;
(xi) Incur any indebtedness or other liabilities or guarantee any such indebtedness or other liabilities of others or issue or sell any debt securities of the Company or guarantee any debt securities of others, except in the ordinary course of business;
(xii) Grant any severance or termination pay to any director, officer employee or consultant, except payments made pursuant to standard written agreements outstanding on the date hereof (which agreements are disclosed on Schedule 4.1(a)(xii));
(xiii) Adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees, except as expressly set forth in the Company's 1999 Operating Plan;
(xiv) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice;
(xv) Take any action, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that could jeopardize the tax-free reorganization hereunder;
(xvi) Pay, discharge or satisfy, in an amount in excess of $10,000, in any one case, or $25,000, in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements or incurred in the ordinary course of business since February 28, 1999;
(xvii) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(xviii) Enter into any strategic alliance, joint development or joint marketing arrangement or agreement;
(xix) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith;
(xx) Waive or commit to waive any rights with a value in excess of $25,000, in any one case, or $50,000, in the aggregate;
(xxi) Cancel, materially amend or renew any insurance policy other than in the ordinary course of business;
(xxii) Alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(xxiii) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i) through (xxii) above, Section 2.8 or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.except
Appears in 1 contract
Company Conduct. Except as set forth in Schedule 4.1, during During the --------------- period from the date of this Agreement --------------- and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in materially substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due. The Company agrees, and, to the extent consistent with the business of the Companysuch business, to use all reasonable efforts consistent with past practice and policies to preserve intact the Company's its present business organization, keep available the services of the Company's its present officers and key employees and preserve the Company's their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with the Companyit, all with the goal of preserving unimpaired the Company's its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any event or occurrence or emergency not in the ordinary course of its business, and any material event involving or adversely affecting or likely to adversely affect the Company or its business, business prospects, assets, operation or condition (financial or other). Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of Parent:
(i) Enter into any commitment, activity or transaction not in the ordinary course of business;.
(ii) Transfer or license to any person or entity any rights to any Technology Company Intellectual Property Rights or IP Rights (other than pursuant negotiate to ordinary course end-user licenses)enter into any joint development agreement with any person or entity regarding any rights to any Company Intellectual Property Rights;
(iii) Enter into or amend any material agreements pursuant to which any other party is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of the Company, except in the ordinary course of business;
(iv) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the agreements set forth or described in the Company Schedules;
(v) Commence any litigation;
(vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor);
(vii) Except for the issuance of shares of Company Capital Stock upon exercise or conversion of presently outstanding Company Options and Series A PreferredOptions, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than from option grants for new hires and promotions expressly contemplated by the Company's 1999 Operating Plan;
(viii) Cause or permit any amendments to its Certificate Articles of Incorporation or Bylaws;
(ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Company;
(x) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice;
(xi) Incur any indebtedness or other liabilities for borrowed money or guarantee any such indebtedness or other liabilities of others or issue or sell any debt securities of the Company or guarantee any debt securities of others, except in the ordinary course of business;
(xii) Grant any severance or termination pay to any director, officer employee or consultant, except payments made pursuant to standard written agreements outstanding on the date hereof (which such agreements are disclosed on Schedule 4.1(a)(xii));
(xiii) Adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, extend any employment offer, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees, except as expressly set forth in the Company's 1999 Operating Plan;
(xiv) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice;
(xv) Take any action, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that could jeopardize the tax-free reorganization hereunder;
(xvi) Pay, discharge or satisfy, in an amount in excess of $10,000, in any one case, or $25,000, in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements or incurred in the ordinary course of business since February 28, 1999Statements;
(xviixvi) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(xviiixvii) Enter into any strategic alliance, joint development or joint marketing arrangement or agreement;
(xixxviii) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith;
(xxxix) Waive or commit to waive any rights with a value in excess of $25,00010,000, in any one case, or $50,00025,000, in the aggregate;
(xxixx) Cancel, materially amend or renew any insurance policy other than in the ordinary course of business;
(xxiixxi) Alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(xxiiixxii) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i) through (xxii) above, Section 2.8 or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Merger Agreement (Cirrus Logic Inc)
Company Conduct. Except as set forth in Schedule 4.1, during During the --------------- period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and or the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in materially substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due. The Company agrees, and, to the extent consistent with the business of the Companysuch business, to use all reasonable efforts consistent with past practice and policies to preserve intact the Company's its present business organization, keep available the services of the Company's its present officers and key employees and preserve the Company's their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with the Companyit, all with the goal of preserving unimpaired the Company's its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any event or occurrence or emergency not in the ordinary course of its business, and any material event involving or adversely affecting or likely to adversely affect the Company or its business, business prospects, or assets, operation or condition (financial or other). Except as expressly contemplated by this Agreement, including the consummation of the Recapitalization (as defined in Section 5.30) and the conversion of the Company Series A&C Preferred Stock into Company Common Stock, the Company shall not, without the prior written consent of Parent:
(i) Enter into any commitment, activity or transaction not in the ordinary course of business;
(ii) Transfer to any person or entity any rights to any Technology or IP Company Intellectual Property Rights (other than pursuant to ordinary course end-user licenseslicenses in the ordinary course of business);
(iii) Enter into or amend any material agreements pursuant to which any other party is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of the Company, except in the ordinary course of business;
(iv) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the agreements set forth or described in the Company Schedules;
(v) Commence any litigation;
(vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor);
(vii) Except for the issuance of shares of Company Capital Stock upon exercise or conversion of presently outstanding Company Options or warrants or except as agreed prior to the date of this Agreement and Series A Preferreddisclosed on the applicable Schedule 4.1(a)(vii), issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than from option grants for new hires and promotions expressly contemplated by the Company's 1999 Operating Plan;
(viii) Cause or permit any amendments to its Certificate of Incorporation or Bylaws, except for an amendment to its Certificate of Incorporation to increase the authorized common stock and to provide for the conversion of the Company Series A&C Preferred Stock into Company Common Stock immediately prior to the Closing (the “Conversion Amendment”);
(ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Company;
(x) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice;
(xi) Incur any indebtedness or other liabilities for borrowed money or guarantee any such indebtedness or other liabilities of others or issue or sell any debt securities of the Company or guarantee any debt securities of others, except for indebtedness to the Xxxxxxx Group or other lenders (on terms substantially similar as provided in Schedule 2.7) not to exceed (x) $350,000 if the ordinary course of businessEffective Time occurs on or prior to January 15, 2003, and (y) $500,000 if the Effective Time occurs or is reasonably expected to occur after January 15, 2003;
(xii) Grant any severance or termination pay to any director, officer employee or consultant, except payments made pursuant to standard written agreements outstanding on the date hereof (which such agreements are disclosed on Schedule 4.1(a)(xii));
(xiii) Adopt or amend any employee benefit plan, program, policy or arrangement, amend any employment or consulting agreement or enter into any employment contractor consulting contract (except as contemplated in Section 5.21 herein), extend any employment offer, pay or agree to pay any special bonus or special remuneration to any director, officer, employee or consultant, or increase the salaries or wage rates of its directors, officers and employees, except as expressly set forth in the Company's 1999 Operating Plan;
(xiv) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice;
(xv) Take any action, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which action that would be reasonably likely expected to interfere with Parent's ability to account for cause the Merger to fail to qualify as a pooling reorganization within the meaning of interests or any other action that could jeopardize Section 368(a) of the tax-free reorganization hereunderCode;
(xvi) Pay, discharge or satisfy, in an amount in excess of $10,00025,000, in any one case, or $25,000100,000, in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements or incurred in the ordinary course of business since February 28, 1999Statements;
(xvii) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(xviii) Enter into any strategic alliance, joint venture, collaboration, joint development or joint marketing arrangement or agreement, except in the ordinary course;
(xix) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith;
(xx) Waive or commit to waive any rights with a value in excess of $25,000, in any one case, or $50,000100,000, in the aggregate;
(xxi) Cancel, materially amend or renew any insurance policy other than in the ordinary course of business;
(xxii) Alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(xxiii) Amend any agreements or governing documents with respect to the indemnification of the Company’s directors or officers; or
(xxiv) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i4.1(a)(i) through (xxiixxiii) above, Section 2.8 or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Company Conduct. Except as set forth in Schedule 4.1, during During the --------------- period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and or the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in materially substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due. The Company agrees, and, to the extent consistent with the business of the Companysuch business, to use all reasonable efforts consistent with past practice and policies to preserve intact the Company's its present business organization, keep available the services of the Company's present its current directors, officers and key employees and preserve the Company's their relationships with customers, suppliers, distributorscorporate partners, collaborators, licensors, licensees, and others having business dealings with the Companyit, all with the goal of preserving unimpaired the Company's its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any event or occurrence or emergency not in the ordinary course of its business, and any material event involving or adversely affecting or likely to adversely affect the Company or its business, business prospects, assets, operation or condition (financial or other). Except as expressly contemplated by this AgreementAgreement or as set forth on Schedule 4.1, the Company shall not, without the prior written consent of Parent:
(i) Enter into any commitment, activity or transaction not in the ordinary course of business;
(ii) Transfer to any person or entity any rights to any Technology or IP Rights (other than pursuant to ordinary course end-user licenses)Company Intellectual Property Rights;
(iii) Enter into or amend any material agreements pursuant to which any other party is granted manufacturing, marketing, distribution distribution, licensing or similar rights of any type or scope with respect to any products of the Company, except in the ordinary course of businessscope;
(iv) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the material agreements set forth to which Company is a party, or described in the Company Schedulesenter into material capital commitments or material long term obligations;
(v) Commence or settle any litigation;
(vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1Membership Interests, or split, combine or reclassify any of its capital stock Membership Interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the CompanyMembership Interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock Membership Interests (or options, warrants or other rights exercisable therefor); provided, however, Parent and Merger Sub hereby acknowledge and agree that Company may, in Company's sole discretion, distribute to its existing Members, any cash amounts (excluding forgiveness or conversion of debt or other liability) received by the Company pursuant to (i) the exercise of currently outstanding stock options granted to Company's employees, (ii) the exercise of any Warrants currently outstanding, and/or (iii) exercise by Rose Xxxxxx Xxxtures of its right pursuant to Section 3.d of the Letter of Intent between the Company and Rose Xxxxxx Xxxtures (excluding forgiveness or conversion of debt or other liability). It is further acknowledged and agreed by Parent and Merger Sub that any such distribution shall not cause a decrease in the Purchase Price under this Agreement;
(vii) Except for the issuance of shares of Company Capital Stock Membership Interests upon exercise or conversion of presently currently outstanding Company Options and Series A Preferredoptions or other rights to Acquire Membership Interests, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock Membership Interests or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares Membership Interests or other convertible securities, other than from option grants for new hires and promotions expressly contemplated by the Company's 1999 Operating Plan;
(viii) Cause or permit any amendments to its Certificate Articles of Incorporation Organization or BylawsOperating Agreement;
(ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which that are material, individually or in the aggregate, to the business of the Company;
(x) SellPurchase, sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice;
(xi) Incur any indebtedness or other liabilities for borrowed money or guarantee any such indebtedness or other liabilities of others or issue or sell any debt securities of the Company or guarantee any debt securities of others, except in the ordinary course of business;
(xii) Grant any severance or termination pay to any director, officer employee or consultant, except payments made pursuant to standard written agreements outstanding on the date hereof (which such agreements are disclosed on Schedule 4.1(a)(xii)2.12(a);
(xiii) Adopt or amend any employee benefit benefit, bonus, or severance plan, program, policy or arrangement, or enter into any employment contract, extend any employment offer, pay or agree to pay any special bonus or special remuneration to any director, officer, employee or consultant, or increase the salaries or wage rates of its employeesdirectors, except as expressly set forth in the officers, employees or consultants; provided; that Company's 1999 Operating Plan, after consultation with Parent, may hire key management personnel, including, but not limited to, a product director, chief technology officer and an applications chemist;
(xiv) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice;
(xv) Take any action, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that could would jeopardize the tax-free reorganization hereunderhereunder including, without limitation, (A) the revocation of any election under Treasury Regulations Section 301.7701-3(c) to be classified as an association taxable as a corporation for federal tax purposes, and (B) the making of an election under Treasury Regulations Section 301.7701-3(c) to be classified as other than an association taxable as a corporation for federal tax purposes;
(xvi) Pay, discharge or satisfy, in an amount in excess of $10,0005,000, in any one case, or $25,000, 10,000 in the aggregateaggregate (of like cases or similar items), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements or incurred in the ordinary course of business since February 28, 1999Statements;
(xvii) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(xviii) Enter into any strategic alliance, research collaboration, joint development or joint marketing arrangement or agreement; provided, that Company, after consultation with Parent, may enter into a product development agreement with Rose-Hulman Ventures on terms substantially similar to those previously disclosed by Company to Parent;
(xix) Fail to pay or otherwise satisfy its monetary obligations as they become dueconsistent with past practices, which will not have a Material Adverse Effect, except such as are being contested in good faith;
(xx) Waive or commit to waive any rights with a value in excess of $25,0005,000, in any one case, or $50,00010,000, in the aggregate;
(xxi) Cancel, materially amend or renew any insurance policy other than in the ordinary course of business;
(xxii) Alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(xxiii) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i) through (xxii) above, Section 2.8 or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Argonaut Technologies Inc)
Company Conduct. Except as set forth in Schedule 4.1, during During the --------------- period from the date of this Agreement and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company agrees (except to the extent that Parent shall otherwise consent in writingwriting or as expressly contemplated herein) to carry on its business in the usual, regular and ordinary course in materially substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, to pay or perform other obligations when due. The Company agrees, and, to the extent consistent with the business of the Companysuch business, to use all reasonable efforts consistent with past practice and policies to preserve intact the Company's its present business organization, keep available the services of the Company's its present officers and key employees and preserve the Company's their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with the Companyit, all with the goal of preserving unimpaired the Company's its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any material event or occurrence or emergency not in the ordinary course of its business, and any material event involving or adversely affecting or likely to adversely affect the Company or its business, business prospects, assets, operation or condition (financial or other). Except as expressly contemplated by this AgreementAgreement and except as set forth on Schedule 4.1(a), the Company shall not, without the prior written consent of Parent:
(i) Enter Except as set forth in the following subparagraph, enter into any commitment, activity or transaction not in the ordinary course of business;
(ii) Transfer Except for ProviderLink Valve-Added Reseller Agreements, transfer to any person or entity any rights to any Technology or IP Company Intellectual Property Rights (other than pursuant to End-User Licenses in the ordinary course end-user licensesof business);
(iii) Enter into or amend any material agreements pursuant to which any other party is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of the Company, except in the ordinary course of business;
(iv) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the agreements set forth or described in the Company Schedules;
(v) Commence any litigation;
(vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (or options, warrants or other rights exercisable therefor);
(vii) Except as may be required by the SBCL Assets Purchase Agreement, for the issuance of shares of Company Capital Stock upon exercise or conversion of presently outstanding Company Options or Company Convertible Securities and Series A Preferredexcept pursuant to agreements previously entered into and agreements that the Company will enter into in connection with the employment of non-officer employees, issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than from option grants for new hires and promotions expressly contemplated by the Company's 1999 Operating Plan;
(viii) Cause or permit any amendments to its Certificate Articles of Incorporation or Bylaws;
(ix) Acquire Except as may be required by the SBCL Assets Purchase Agreement, acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Company;
(x) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice;
(xi) Incur any indebtedness or other liabilities for borrowed money or guarantee any such indebtedness or other liabilities of others or issue or sell any debt securities of the Company or guarantee any debt securities of others, except in the ordinary course of business;
(xii) Grant any severance or termination pay to any director, officer officer, employee or consultant, except payments (a) required by law or, (b) with respect to non-officer employees and consultants (i) made pursuant to standard written agreements outstanding on the date hereof (which such agreements are disclosed on Schedule 4.1(a)(xii)), or (ii) pursuant to Company policy in effect on the date hereof;
(xiii) Adopt or amend any employee benefit plan, program, policy or arrangement, or enter into any employment contract, extend any employment offer, pay or agree to pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees, except as expressly set forth employees other than in the Company's 1999 Operating Planordinary course of business and consistent with past practice;
(xiv) Revalue Except as required by the acquisition of assets pursuant to the SBCL Assets Purchase Agreement, revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice;
(xv) Take any action, including the acceleration of vesting of any options, warrants, restricted stock or other rights to acquire shares of the capital stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests or any other action that could jeopardize the tax-free reorganization hereunder;
(xvi) Pay, discharge or satisfy, in an amount in excess of $10,00015,000, in any one case, or $25,00050,000, in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Company Financial Statements or incurred in the ordinary course of business since February 28December 31, 19991997;
(xvii) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(xviii) Enter into any strategic alliance, joint development or joint marketing arrangement or agreement;
(xix) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith;
(xx) Waive or commit to waive any rights with a value in excess of $25,00010,000, in any one case, or $50,00025,000, in the aggregate;
(xxi) Cancel, materially amend or renew any insurance policy other than in the ordinary course of business;
(xxii) Alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(xxiii) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i) through (xxii) above, Section 2.8 or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Merger Agreement (Healtheon Corp)
Company Conduct. Except as set forth in Schedule 4.1, during During the --------------- period from the date of this Agreement --------------- and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company agrees (except to the extent that unless Parent shall otherwise give its prior consent in writing) to carry on its business in the usual, regular and ordinary course in materially the same manner as heretofore conductedconsistent with past practice, to pay its debts Liabilities and Taxes when due, to pay or perform other obligations when due. The Company agrees, subject to any good faith disputes over such Liabilities, Taxes and other obligations and, to the extent consistent with the business of the Companysuch business, to use all reasonable efforts consistent with past practice and institute all policies to preserve intact the Company's its present business organization, keep available the services of the Company's its present officers and key employees and preserve the Company's its relationships with customers, suppliers, distributors, licensors, licensees, licensees and others other Persons having business dealings with the Companyit, all with the goal express purpose and intent of preserving unimpaired the Company's its goodwill and ongoing businesses at the Effective Time. The Company shall promptly notify Parent of any event or occurrence or emergency not in the ordinary course of its business, and any material event involving or adversely affecting or likely to adversely affect the Company or its business, business prospects, assets, operation or condition (financial or other). Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of Parent:
(i) Enter into any Contract, commitment, activity or transaction not or incur any Liabilities outside of the ordinary course of business consistent with past practice (it being understood that interoperability agreements with other electronic design automation vendors shall be in the ordinary course of business;); EXECUTION VERSION
(ii) Transfer (by way of a License or otherwise) to any person or entity any Person rights to any Technology or IP Rights (other than pursuant to ordinary course end-user licenses)Company Intellectual Property;
(iii) Enter into or amend any material agreements Contract pursuant to which any other party Person is granted manufacturing, marketing, distribution or similar rights of any type or scope with respect to any products of the Company, except in the ordinary course of businessCompany or Company Intellectual Property;
(iv) Amend or otherwise modify (or agree to do so), except in the ordinary course of businessbusiness consistent with past practice, or violate the terms of, any of the agreements Contracts set forth or described in the Company SchedulesDisclosure Schedule;
(v) Commence any litigationAction or Proceeding;
(vi) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any capital stock of its capital stock, other than dividends presently required to be paid in April, 1999 on its Series A Preferred Stock as described in Schedule 4.1the Company or Equity Equivalents, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock Capital Stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock Capital Stock (or optionsOptions exercisable, warrants convertible or other rights exercisable exchangeable therefor);
(vii) Except for the issuance of shares of Company Capital Stock upon (A) the exercise or conversion of presently outstanding Company Options and listed in Section 2.3 of the Disclosure Schedule or (B) the -------------------------------------- conversion of outstanding shares of Company Series A PreferredPreferred Stock immediately prior to the consummation of the transactions contemplated hereby, issue, grant, deliver or deliver, sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock Company Capital Stock, Equity Equivalents or Options to purchase any other securities convertible into, or subscriptions, rights, warrants or options of the Company (except in compliance with the guidelines of Parent previously provided to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than from option grants for new hires and promotions expressly contemplated the Company by Parent (which compliance will take into account the Company's 1999 Operating PlanExchange Ratios));
(viii) Cause or permit any amendments to its Certificate certificate of Incorporation incorporation or Bylaws;bylaws (other than the contemplated amendments to such documents disclosed in Section 2.3 of the Disclosure Schedule); --------------------------------------
(ix) Acquire or agree to acquire by merging or consolidating with, or by purchasing Enter into any assets or equity securities of, or by Contract in connection with any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Companytransaction involving a Business Combination;
(x) Sell, lease, license or otherwise dispose (or agree to do so) of any of its properties or assetsAssets and Properties, except in the ordinary course of business and consistent with past practice;
(xi) Incur any indebtedness or other liabilities Indebtedness or guarantee any such indebtedness or other liabilities of others Indebtedness in an aggregate amount exceeding $15,000, or issue or sell any debt securities of the Company or guarantee any debt securities of others, except in the ordinary course of business;; EXECUTION VERSION
(xii) Grant any severance or termination pay to any director, officer employee or consultant, except payments made pursuant to standard written agreements outstanding on the date hereof (hereof, the terms of which agreements are disclosed on Schedule 4.1(a)(xii))in the Disclosure Schedule;
(xiii) Adopt or amend any employee benefit planPlan or Contract respecting employment or equity compensation, program, policy or arrangement, or enter into extend any employment contractoffer (except pursuant to the Company's written hiring plan previously provided to Parent by the Company), pay or agree to pay any special bonus or special remuneration to any director, officer, employee or consultant, or increase the salaries or wage rates of its employeesdirectors, except as expressly set forth in the Company's 1999 Operating Planofficers, employees or consultants;
(xiv) Revalue any of its assetsAssets and Properties, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business and consistent with past practice;
(xv) Take any action, including the acceleration of vesting of any optionsCompany Options or unvested Company Capital Stock, warrants, restricted stock or other rights to acquire shares of the capital stock Capital Stock of the Company which would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling Pooling of interests Interests, or any other action that could jeopardize the tax-free reorganization hereunder;
(xvi) Pay, discharge or satisfy, in an amount in excess of $10,00015,000, in any one case, or $25,000, 25,000 in the aggregate, any claim, liability Liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities Liabilities reflected or reserved against in the Company Financial Statements or incurred in the ordinary course of business since February 28, 1999Statements;
(xvii) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of TaxesTaxes with any Taxing Authority or otherwise;
(xviii) Enter into any strategic alliance, joint development or joint marketing arrangement or agreementContract other than joint marketing efforts with its customers;
(xix) Fail to pay or otherwise satisfy its monetary obligations Liabilities as they become due, except such as are being contested in good faith;
(xx) Waive or commit to waive any rights with a value in excess of $25,00015,000, in any one case, or $50,00025,000, in the aggregate;
(xxi) Cancel, materially amend or renew any insurance policy other than in the ordinary course of business;business consistent with past practice; EXECUTION VERSION
(xxii) Alter, or enter into any Contract or other commitment to alter, its interest in any corporation, association, joint venture, partnership, limited liability company partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; or
(xxiii) Take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(i4.1(a)(i) through (xxii4.1(a)(xxii) above, Section 2.8 or any other action that would prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Magma Design Automation Inc)
